BACK DOOR Newsletter on East Timor .........home ...... Dec news

"New Laws: * ASIO to get powers of arrest and detention for up to 48 hours * The removal of the right to silence when under questioning * The creation of terrorist offences and related legislation violating the rights to freedom of expression, assembly and association * Removal of privacy rights and increased powers for government to seize organisation's assets * Denial of the right to legal representation ... In Australia ... Federal Cabinet has announced some extraordinary proposals and over the coming months proposed legislation will be made public. The legislation is likely to be considered in February so it is important for civil society to act now and influence the debate over what are acceptable changes, if any, to our democratic and civil rights. ... In Australia, support for the East Timorese's independence movement could have been banned." Damien Lawson, Western Suburbs Legal Service, Melbourne & Anne O'Rourke, Liberty Victoria (Australia)
See also:

Urgent Action: Until Mar 1, 2002 AI: Australia: Concerns Regarding Security Legislation
BD: The Current World Crisis & BD: National Council of Timorese Resistance

Also:

* BRIEFING PAPER below (added on Jan 17, 2002)

* ALP contacts to protest to: (added on Feb 1, 2002)


URGENT ACTION ALERT up-date (added on Dec 16, 2001)

Please circulate widely:

NEW TERRORIST LAWS THREATEN DEMOCRATIC RIGHTS

* ASIO to get powers of arrest and detention for up to 48 hours
* The removal of the right to silence when under questioning
* The creation of terrorist offences and related legislation violating the rights to freedom of expression, assembly and association
* removal of privacy rights and increased powers for government to seize organisation's assets
* Denial of the right to legal representation

In the wake of the attacks in the US on 11 September governments throughout the "west" are planning and have implemented a number of measures to protect against future terrorist attacks. Some of these measures are directed specifically against such attacks, but some of the measures are not and would, if implemented, affect the fundamental rights of the people living in these countries.

In Australia, the Federal election has delayed specific legislative changes from being implemented. However, Federal Cabinet has announced some extraordinary proposals and over the coming months proposed legislation will be made public.

The legislation is likely to be considered in February so it is important for civil society to act now and influence the debate over what are acceptable changes, if any, to our democratic and civil rights.
 

NEW POWERS FOR ASIO

While the precise proposals remain sketchy. The Prime Minister has said ASIO will be able to arrest and hold people for questioning for 48 hours after obtaining a warrant from a Federal Magistrate or the Administrative Appeals Tribunal. Both these bodies have been appointed by the present Federal Government, AAT members do not have the same independence and are not a judicial authority, with fixed terms and reappointment determined by the government. ASIO would move from spy agency to secret police.

Extremely concerning is the Attorney General's statement that people arrested could face up to five years in jail for refusing to answer questions, removing people's right to silence. People could be held incommunicado with no right to a lawyer.

Such powers would not be restricted to those suspected of terrorism, but anyone who might have information regarding politically motivated violence. The Attorney General has said this could include lawyers and journalists.
 

ORGANISATIONS BANNED

New legislation will be introduced based on the UK Terrorism Act 2000. This act allows the government to ban organisations and makes it an offence to be a member, attend a meeting, provide any support, and indeed even wear T-shirt with the organisation's symbol. As one critic has said, support for Nelson Mandela's ANC would have been banned if these laws had been in place during the time of the anti-apartheid movement. In Australia, support for the East Timorese's independence movement could have been banned. But the laws scope is not just restricted to solidarity with overseas independence groups. The definition of terrorism is so broad that many unions and community organisations involved in industrial disputes, organising public protest or dissent could be included.

Proposed amendments would also give greater power to government agencies to avoid privacy protections and access financial and other information and confiscate or freeze assets.

If Australia adopts the European model, the scope could be even wider. The European Parliament is currently discussing new laws which would define terrorism as any offences which "aim to seriously prejudice the political, economic or social structures of a country." Such a definition might include anyone arrested at protest about the environment, corporate globalisation, native title, or asylum seekers or union members taking industrial action.
 

GOVERNMENT PLANS COULD GO FURTHER

The United States, UK, Canada and New Zealand have already passed draconian new laws with broad definitions of terrorism; enabling government to ban organisations and penalise people who support such organisations. In the US and UK non-citizens can be detained without a court order. In Britain the detention is indefinite with a government appointed committee only reviewing the detention after 6 months. Police and intelligence agencies have been given extensive new powers to search people homes, tap phones and avoid privacy protections to access financial and personal information.

The Bush Administration plans to establish secret military tribunals whereby those suspected of terrorist activity will be brought before a US military commission.   These military commissions can by-pass normal legal protections and checks and balances in the legal system.

The Commission sits in secret. There is no right to legal representation and hearsay evidence is admissible. Those convicted have no right to appeal and could receive the death penalty.
 

ACT NOW

The existing criminal law is adequate to address any offences that fall within any common sense definition of terrorism. Murder, serious injury, aiding and abetting or conspiracy are all charges available to police, with serious penalties attached.

The danger of these proposals is that many of the protections and principals of the criminal law will be done away with broad powers placed in the hands of an unaccountable and secret police. The need for security should not come at the price of those democratic rights that have been won through centuries of struggle.

* circulate this information and tell your family, friends and workmates about these dangerous proposals

* write to politicians informing them of your concerns and opposition to the proposals (some addresses below)
 

WRITE, RING, FAX

Prime Minister John Howard
Tel: 02 6277 7080
Fax: 02 6273 4100

Simon Crean
Parliament House:
Tel: (02) 6277 4045 Fax: (02) 6277 2307
Email: S.Crean.MP@aph.gov.au

John Faulkner (ALP Senate)
Parliament House
Tel: (02) 6277 3233
Fax: (02) 6277 3415
Email: senator.faulkner@aph.gov.au

More ALP Contacts to petition below:

Natasha Stott Despoja
Tel: 02 6277 3645
Fax: 08 6277 3235
Email: Senator.Stott.Despoja@democrats.org.au

All mail can be addressed to: Parliament House, Canberra ACT 2600
 

FOR MORE INFORMATION

Damien Lawson
Western Suburbs Legal Service Inc.
03 9391 2244 (Tel)
03 9399 1686 (Fax)
0418 140 387 (Mobile)
clewsls@vicnet.net.au
http://www.vicnet.net.au/~wsls

Anne O'Rourke
Liberty Victoria
03 9903 8708 (Tel)
03 9903 8710 (Fax)
0409 334 581 (Mobile)
anne.orourke@buseco.monash.edu.au




CIVIL LIBERTIES, HUMAN RIGHTS AND ANTI-TERRORIST LEGISLATION

BRIEFING PAPER

New ASIO Powers Threaten Democratic Rights

* ASIO to get powers of arrest and detention for up to 48 hours
* The removal of the right to silence when under questioning
* The creation of terrorist offences and related legislation violating the rights to freedom of expression, assembly and association
* Denial of the right to legal representation

In the wake of the attacks in the US on 11 September governments throughout the "west" are planning and have implemented a number of measures to protect against future terrorist attacks. Some of these measures are directed specifically against such attacks, but some of the measures are not and would, if implemented, affect the fundamental rights of the people living in these countries. In Australia, the Federal election has delayed specific legislative changes from being implemented. However, Federal Cabinet has announced some extraordinary proposals and over the coming months proposed legislation will be made public.

It is important for civil society to act now and influence the debate over what are acceptable changes, if any, to our democratic and civil rights.

This paper critical examines what is known so far about proposed changes in Australia and examines new laws in North America, Europe and New Zealand as a guide to what the Howard Government might propose in the near future. Anti-terrorist legislation enacted in the UK and the US contain extremely broad definitions of ‘terrorism’ and a distinct system of arrest, detention and prosecution which seriously undermines the checks and balances build into a democratic system supposedly premised on notions of the rule of law and the separation of powers. In Australia we have an opportunity to prevent such attacks on our democratic and civil rights.

Australia

The Attorney-General, Daryl Williams, announced on 27 September 2001 the establishment of a high level committee to examine the impact of the attacks in the United States on Australia’s counter-terrorism arrangements. Key Commonwealth Departments such as the Office of National Assessment, the Australian Security Intelligence Organisation, the Federal Police and the Immigration Department are all part of that committee review process.

While the precise proposals remain sketchy.   The Prime Minister has said ASIO will be able to arrest and hold people for questioning for 48 hours after obtaining a warrant from a Federal Magistrate.   Even more concerning is the Attorney General's statement that people arrested could face up to five years in jail for refusing to answer questions, removing people's right to silence.

Anti-terrorist legislation based upon the UK Terrorist Act 2000 is likely to be introduced in the first session of Parliament in 2002.    The UK Act (see below) allows the government to ban organisations and make it an offence to be a member, attend a meeting, provide any support, indeed even wear a t-shirt with the organisation's symbol.    Support for Nelson Mandela's ANC would have been banned if these laws had been in place during the time of the anti-apartheid movement.  In Australia, support for the East Timorese's independence movement could have been banned.   The definition of terrorism is so broad that many community organisations and unions involved in public protest or dissent could be included.

If Australia adopts the European model, the scope could be even wider.   The European Parliament is currently discussing new laws which would define terrorism as any offences which "aim to seriously prejudice the political, economic or social structures of a country".  Such definition might include anyone arrested at a protest about the environment, corporate globalisation, native titled, or asylum seekers.
 

The existing criminal law is adequate to address any offences which fall within any common sense definition of terrorism.   Murder, serious injury, aiding or abetting or conspiracy are all charges available to police, with serious penalties attached.

Below is a summary of other anti-terrorist legislation which have been enacted or currently proposed by other Western 'democracies'.

United Kingdom

The Terrorism Act 2000 – UK

This Act was initially designed to deal with terrorism in Northern Ireland.   The Bill is highly problematic in a number of ways:

Definition of terrorism: Defined very broadly - initially it was violence with a political motive, the definition has been changed to include anyone serving a “political, religious or ideological” cause, who uses violence or the threat of violence against people or property.   It also includes interference with or seriously disrupting electronic systems (computer hacking, mass emails or faxes by human rights organisations) or threats to public health (nurses union strikes for better pay and conditions).

Under the UK Act almost any dissident group, union or human rights, could be interpreted as a ‘terrorist organization”.

Home Secretary can proscribe groups:  The Home Secretary is not required to make a case against the organization in court in order to proscribe it.  The organization can only defend itself after proscription not during the process.  Thus the HS can effectively criminalise members and supporters of any organisation without proof of wrongdoing.

Offences related to proscription include:
- membership of a proscribed organisation
- inviting support, fundraising, for a proscribed organisation
- managing or assisting in the arranging of meetings to support or further the activities , or to be addressed by a member of a proscribed organisation, and
- addressing a meeting where the address encourages support for a proscribed organisation.

There is no recognition or distinction made between repressive or dictatorial regimes and democratic countries.   Thus supporting an organisation which is fighting to overthrow a dictatorial regime (anti-apartheid or Burma) would bring you within the provisions of the Act.

If convicted under these offences a prison sentence of not more than 10 years is imposed.  In 2001 21 Muslim organizations were listed as proscribed groups in addition to the 14 Northern Ireland groups already proscribed.

In addition to the above the Act also allows police to arrest and search without warrants if they suspect someone to be a terrorist.

Reversal of the burden of proof, requires the defendant to prove they are innocent rather than the prosecution proving that they are guilty.

Section 13 of the Bill makes it an offence to wear an item of clothing as to arouse suspicion that you are a member of a proscribed group.

Section 75 allows many offences to be tried without a jury and only a single judge.

Collecting or possessing information useful for terrorist purposes is an offence, ie, list of MP’s addresses, businessmen or organizations; details of security flaws in a major operating system such as Windows or Linux.  You have to prove that you have a reasonable excuse for collecting or possessing such information.

These are only some of the major concerns of the Bill.  The Bill seriously undermines freedom of expression of association, the right to protest.  Given the current concerns regarding economic globalisation most participating groups in such protests would be caught under the UK Act.

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (HR 3162 “USA PATRIOT Act)

This Bill was recently signed into law by the Bush Administration after the aftermath of the terrorist attack on the World Trade Center Towers in New York.

Problems with the Bill:

Surveillance: expands the authority to intercept wire, oral and electronic communications as well as share criminal investigative information, including allowing surveillance to follow a person who uses multiple communication devices or locations.

Detention Powers: grants authority to the Attorney-General to hold aliens suspected of terrorist activities for up to seven days before bringing criminal charges or beginning deportation proceedings.
Warrants: abolishes Fourth Amendment requirement of serving a warrant prior to executing a search if officers have ‘reasonable cause to believe’ that doing so may ‘seriously jeopardize an investigation’.

Allows the monitoring of a person’s computer without showing probable cause.

The Government can compel the disclosure of the personal records of anyone connected to or the target of an investigation.  It includes business, health, education, library records, etc, all with only minimal judicial supervision.

Deportation:   The Bill allows the detention and deportation of people engaging in innocent associational activity.  As with the UK Bill reverse onus applies, a person must prove they are innocent rather than the state proving they are guilty.

Military Tribunals

The Bush Administration plans to establish secret military tribunals whereby those suspected of terrorist activity will be brought before a US military commission.   These military commission can by-pass normal legal protections and checks and balances in the legal system.

*  Commission sits in secret
*  Hearsay evidence is permissible
*  No legal representation
*  Decisions non-appealable
*  Can impose the death penalty

The UK is currently looking at establishing similar military tribunals.

Canada

Bill C-36, Anti-terrorism Act, Canada
Canadian Bar Association

Definition: Broad.  According to the Canadian Bar Association read in its most expansive interpretation, a terrorist activity could be an act or omission committed partially for a political, religious or ideological reason, partially with the intention of intimidating a segment of the public, or compelling a person, government or organisation to do something or not do something.

Intention - to cause serious property damage likely to disrupt an essential service, facility or system, or to disrupt an essential service intending to cause a serious risk to the safety of any segment of the public.

Problem: Due to the vagueness of the definition the Act may catch unlawful activity that is not terrorist activity this then subjects the person/s to the harsher penalty regime under the antiterrorist act rather than subjecting them to penalties under the criminal law.

These activities could include:

*  Wildcat strikes or demonstrations
*  Protests activities by Aboriginal people which disrupt an "essential" service or block a road as a protest against development activities on Aboriginal lands - protestors in Canada disrupted the use of highways and waterways to compel the government to recognise an Aboriginal fishery.
* Nurses and truckers' strikes, or protestors at the Quebec City summit or the APEC conference in Vancouver

Listing of terrorist s: Clause 4, s83.05(1) provides that the Governor in Council to make regulations to establish a list of entities believed to be involved in terrorist activities.

An entity can be listed solely on the basis that the Governor in Council or the Solicitor General through the Governor in Council has reasonable grounds to believe it should be added.

Once an entity becomes a "listed entity" it is considered a "terrorist group" and is subject to the ensuing provisions in the Bill that criminalises involvement with, or support of any sort of terrorist group, and all its property is frozen and subject to forfeiture.

Particpating, Facilitating, Instruction and Harbouring (Legal representation):  Section 83.18(3) expansive definition includes offering to provide a skill in association with a listed entity, or remaining in any country in association with a listed entity.

Lawyers representing accused groups could be seen as "providing a skill or an expertise for the benefit of .. a terrorist group.   In determining participation or contribution, a court may consider use of a name or identifying symbols of the listed entity, receipt of a benefit from any terrorist group or association with members of that group.   According to the Canadian Bar Association the wording appears to catch defence lawyers.  In addition, the s83.1, Freezing of Property, Disclosure and Audit, is unclear as to protection of solicitor-client confidentiality and privilege.

Investigative techniques:   The Bill introduces the concept of preventive arrest.   This mechanism exposes people to arrest and detention before charges are laid against anyone.   S83.3(4) permits a police officer who suspects on reasonable grounds that it is necessary to prevent an indictable offence constituting terrorist activity, to arrest without warrant and detain a person until a provincial court judge is available.   If the Judge determines that there were reasonable grounds for the suspicion, he/she may impose conditions in the form of a bond or surety for up to twelve months.   Should a person refuse to enter into a bond, the judge can commit the person to prison for up to 12 months.

The Bills outlined above mark a clear departure from the necessary balance between collective security and individual liberties that has underpinned democratic legal systems.  They establish a separate legal system with a distinct system of arrest, prosecution and detention for persons categorized as "terrorists".  Many of the provisions in these Acts are in breach of obligations under international human rights law.
 

The danger of these proposals is that many of the protections and principles of the criminal law will be done away with and broad powers placed in the hands of accountable and secret police.   The need for security should not come at the price of those democratic rights that have been won through centuries of struggle.
 

ACT NOW

* circulate this information and tell your family, friends and workmates about these dangerous laws

*  write to politicians informing them of your concerns and opposition to these laws (contact details below)
 

WRITE, RING, FAX

Prime Minister John Howard
Tel: 02 6277 7080
Fax: 02 6273 4100

Simon Crean
Parliament House:
Tel: (02) 6277 4045 Fax: (02) 6277 2307
Email: S.Crean.MP@aph.gov.au

John Faulkner (ALP Senate)
Parliament House
Tel: (02) 6277 3233
Fax: (02) 6277 3415
Email: senator.faulkner@aph.gov.au

More ALP Contacts to petition below:

Natasha Stott Despoja
Tel: 02 6277 3645
Fax: 08 6277 3235

All mail can be addressed to: Parliament House, Canberra ACT 2600

FOR MORE INFORMATION & REQUEST FOR SPEAKERS CONTACT:

Damien Lawson
Western Suburbs Legal Service Inc.
03 9391 2244 (Tel)
03 9399 1686 (Fax)
0418 140 387 (Mobile)
clewsls@vicnet.net.au
http://www.vicnet.net.au/~wsls

Anne O'Rourke
Liberty Victoria
03 9903 8708 (Tel)
03 9903 8710 (Fax)
0409 334 581 (Mobile)
anne.orourke@buseco.monash.edu.au




ALP contacts to protest to:

"Email ALP politicians: they need to know that they are being watched on this one: after so much lobbying they seem to be changing their minds on concentration camps: every email helps.

To make it easier for you here are their addresses: it’ll only take you fifteen minutes and seeing as how you’re already online it won’t even cost you a cent." Jacob Grech

Opposition Leader Simon Crean
Parliament House
Tel: (02) 6277 4045 Fax: (02) 6277 2307
Email: S.Crean.MP@aph.gov.au

Deputy Opposition Leader Jenny Macklin
Jenny.Macklin.MP@aph.gov.au

Leader of the Opposition in the Senate
and Shadow Minister for Public Administration and Home Affairs
Senator John Faulkner
Parliament House
Tel: (02) 6277 3233
Fax: (02) 6277 3415
senator.faulkner@aph.gov.au

Deputy Leader of the Opposition in the Senate
Senator Stephen Conroy
senator.conroy@aph.gov.au

Shadow Attorney General
Robert McClelland
R.McClelland.MP@aph.gov.au

The ALP’s website feedback form
http://www.alp.org.au/action/feedback.html
 

"Anti-terrorism" Legislation in Federal Parliament

Dear Everyone,

The Howard Government is proposing to put new legislation through parliament when it resumes next month.

Under the guise of ‘anti-terrorism’ the new bill aims to:

* give ASIO the right to arrest and detain people for questioning for up to 48 hours without any legal representation
* remove the right to silence while being questioned
* give the government greater rights to seize assets of organisations
* reduce rights to privacy
* restrict the right to assemble and organise
* create new offences dealing with terrorism
* increase police powers of surveillance

While there is much concern in the community about the perceived threat of terrorism in Australia and many unsubstantiated claims made about terrorist plots, it must be remembered that acts of terrorism in Australia are already illegal. It is already illegal in Australia to murder, maim, torture or coerce people - and so it should be - and appropriately severe penalties already exist for these crimes.

As globalisation strips Governments of traditional roles of policy and legislation, one of the few roles left for national governments is military and social control and this government, following in the steps of its mentors in the US and UK have taken to both with gusto.
John Howard is following in the footsteps of his hero Robert Menzies by resurrecting the ‘red menace’ scare of his idyllic1950’s as anti-terrorist hysteria. These laws aim to increase social control by delegitamising the role of activist and pressure groups by equating them with terrorism and painting them as variously unAustralian and something less than human.

These proposed new laws come from the same mindset that considers it reasonable to keep families and children in a concentration camp in the desert for years on the suspicion that their claims are fabricated and then accuse them of blackmail (terrorism?) when in despair they mutilate their own bodies and subject their own children to humiliation in an attempt to gain media exposure to their plight.

The succesful passage of this bill would lead in time to ordinary Australians being too intimidated to speak out on issues which concern them. The implications for unionists, environmentalists, social justice and solidarity activists are immense: would the MUA pickets have been deemed ‘terrorist’ if these laws had been in existence four years ago? what about the Franklin River? the WEF? or AIDEX?

What about supporting activists and organisations internationally recognised as terrorist, which in the past have included Nelson Mandela and the ANC, Xanana Gusmao and Fretilin? Under these new laws it could be deemed an offence to support the legitaimate struggle of the Palestinian, Burmese, Bougainvillian or West Papuan people or whereever the next Timor uprising occurs.

Whatever we feel personally about radical forms of protest such as blockading the WEF, (and I for one disagreed strongly and publicly with some of the tactics of the so-called ‘black bloc’) it would be easy for the government to paint such actions and activists as ‘terrorist’ when clearly, they are not.

If you are someone who has ever taken a stand on any issue; and the fact that I have your email address from some list or other indicates that you probably are, I urge you to make yourself heard on this one. If not, you may not have the opportunity so easily again.

Thanks for your time.

Jacob Grech


See also:

Until Mar 1, 2002 AI: Australia: Concerns Regarding Security Legislation  Urgent Action added Feb 12
"Amnesty International has concerns regarding the proposed “security legislation” to be introduced shortly into the Australian parliament. In the wake of the attacks of 11 September 2001 in the United States, the Australian government indicated that it will pass “security legislation” based on the UK Terrorism Act 2000 and Anti-Crime and Security Act 2001. Among other things, the proposed legislation will give ASIO the power to arrest and detain people without legal representation, removes the right to silence and the privilege against self-incrimination, makes it an offence punishable by up to 5 years imprisonment to fail to answer questions, and creates a new offence of “terrorism”, under which terrorism is defined broadly. ... Immediate action is critical to block this Bill. Please send letters/faxes/email to your local Members of Parliament." Amnesty International

BD: The Current World Crisis - A collection of statements on the recent terrorist attacks in the US and the subsequent 'war on terrorism'

BD: National Council of Timorese Resistance / Conselho Nacional de Resistência Timorense (CNRT) - A collection of recent speeches, statements, news and reports


BACK DOOR Newsletter on East Timor .........home ...... Dec news
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