If 2014 was a sad year for liberty in Australia, 2015 will be no betterFebruary 6, 2015
The Abbott government struggled to gain passage of anything worthwhile in its first full year. Most of its economic reforms were stymied, with higher education the most notable failure. It’s fair to say the deficit problem is still far from resolved.
What it did achieve, however, was to make 2014 a terrible year for freedom by passing a raft of illiberal national security laws. And remarkably for an opposition that only knows how to oppose, it enjoyed Labor’s supine cooperation.
The first tranche of national security legislation sailed through the Senate on 25 September. Despite scrutiny by a range of people who ought to know better, one of the sections opened a loophole that sanctioned torture. In short, Asio officers participating in a special intelligence operation (SIO) – as defined by Asio, without external review – were to receive immunity from prosecution for all offences save the most serious ones.
The intention, clearly, was to protect officers from prosecution in the event that they joined a proscribed terrorist organisation or had to commit an offence to prove their bona fides – as is common in criminal gangs everywhere. What no one realised is the same provision provided cover for acts that amount to torture.
After failing to have my objections taken seriously by being reasonable, I deployed the “nuclear option” and threatened to refuse to cooperate with the government in any but the most limited way. It wasn’t quite the full Lambie, but it was sufficient to ensure that the bill was amended.
This, I’m sorry to say, was my only win for liberty when it comes to national security. The bill as passed contained a significant number of nasties, and I’m still disappointed that section 35P – which mandates imprisonment for 10 years for disclosure of an SIO – only became of interest to the press after I’d started going on about it.
The second tranche of the government’s national security legislation, the so-called “foreign fighters bill”, passed the Senate on 29 October. It, too, attacked freedom of the press and speech.
The press suffered from the creation of a new offence of reporting on a delayed access search warrant. This allows theAustralian federal police to break into a house without being required to advise the owner for six months or more. The penalty for disclosing it is two years in jail.
The attack on speech is contained within the offence of “advocating terrorism”, punishable by a term of five years. It goes far beyond “incitement of violence” at common law. Not only does it take in “promotion” of violence – a term broad enough to cover a general statement endorsing revolutionary violence in a third country – but requires only that the speaker is “reckless” as to whether what is said causes terrorism.
George Brandis complained to me that the problem with incitement is that it’s difficult to prove. And yet this seems to be the point. If it were easy the authorities would be able to lock people up at will for things they say. Organisations can also be proscribed on the basis of advocating terrorism. Once again the definition of “advocacy” employed is broader than that captured by incitement.
This seems to have been drafted with Hizb ut-Tahrir in mind. I know Tony Abbottloathes the organisation, with good reason. But rather than muzzle it with laws that could be used against any of us in future, I’d prefer it were open to scrutiny and criticism. There are worrying similarities between the situation with Hizb ut-Tahrir and the harebrained 1950s attempt to ban the Communist party. That question was put to the Australian people in a referendum, and to their credit they rejected the ban. I wonder what the result of a similar referendum would be if it were held now.
There’s another thing going on here, too. The foreign fighters legislation catches all sorts of legitimate objections to foreign tyranny. I support the overthrow of Kim Jong-un and Robert Mugabe and wouldn’t mind if there were a bit of advocacy to achieve that, for example. As it stands, it is impossible to know in advance which foreign conflicts will attract censure and which will not.
The third tranche of national security legislation was as much about patching up the first two as it was about changing the law. However, the bill also expanded the control order and preventative detention order (PDO) regimes.
These are obnoxious because they ignore the basic principle that people should not be deprived of their liberty without a finding of guilt. Both regimes mandate significant constraints on an individual’s liberty – including imprisonment – for the purpose of preventing terrorist acts. While nobody wants to see such acts, they throw out any semblance of the presumption of innocence.
Alarmingly, the PDO regime permits surveillance of an individual’s telecommunications activities, including, as solicitor Nick Hanna discovered when he represented one of the men arrested in the September counter-terrorism raids in Sydney, lawyer-client discussions.
If 2014 was a sad year for liberty, 2015 will be no better. The data retention bill, due for consideration early this year, is based on the premise that we’re all potential terrorists and need to be watched. Moreover, it naively assumes that despite similar data collected by America’s NSA being leaked to the Russians and Chinese, somehow the data from Australians will avoid that fate.
It seems no liberty is so precious that it cannot be sacrificed in the quest to get terrorists out from under our beds.