Duncan Kerr.
Wise precautions or impunity for abuses?
Introduction
Although there has been much concerned discussion in Australia about the events of September 11 and their aftermath, Australian society still has not fully engaged in rigorous debate about the implications of those events, including our involvement in the 'war on terrorism'. On one hand this is understandable, given the shocking nature of the events of September 11 (perhaps especially to those living in nations, like Australia, whose modern history does not include organised terrorist activity, and whose 'mainstream' population has been largely untouched by acts of politically-motivated violence). On the other hand, this is a matter of concern, given the potentially serious international and domestic consequences of both the September 11 attacks themselves and the nature of the subsequent US-led 'war on terrorism' - consequences that demand scrutiny and debate.1
'Security', 'the national interest' and 'terrorism': a content-free zone?
One potential consequence of the post-September 11 environment risks jeopardising full and frank public debate about the content and desirability of proposed domestic anti-terrorism laws. This is the risk that the blanket use of terms such as 'security', 'the national interest' and 'terrorism' will be resorted to in order to justify measures that are, at least partially, politically motivated; in the sense that they give the current government a political advantage vis-Ã -vis organisations and individuals who oppose it or its political agenda. The risk of this is greatest when this language of security and terror is used without specific justification and explanation. Such terms can become a 'content-free zone' into which almost any cause, organisation or individual can be inserted, and thereby characterised as a threat to Australia and/or its allies.
This would not be a new phenomenon in Australia - recall, for example, the anti-communist rhetoric and political measures of the Menzies era, and Australia's history of interning 'enemy aliens' living in Australia in times of war.2 During both world wars thousands of Australians of German (and in WWII Italian) decent had their lives ruined by their internment without effective legal remedy-often on the basis of dubious information provided to security agencies. Nor it is a new phenomenon elsewhere. Notorious and extreme historical examples internationally include the uses of propaganda and targeting of political opponents as security threats by ultra-fascist states such as Nazi Germany and Franco's Spain, ultra-communist states such as China during the Cultural Revolution and the Soviet Bloc under Stalin, and ultra-nationalist states such as apartheid South Africa and the emerging nations of the former Yugoslavia in the 1980s and 1990s.
There are worrying signs today that tolerance of the suppression of dissent is increasing. Amnesty International has expressed concern that many countries have already seized on the events of September 11 to justify action that would otherwise have been condemned. Egypt has clamped down on public gatherings and demonstrations and detained opponents without trial under emergency legislation. China has intensified its crackdown on Uighur opponents of Chinese rule in the Xinjiang Uighur Autonomous Region, claiming their opponents - who they accuse of being 'separatists' - were linked with international terrorism. Malaysia is claiming the events of September 11 justify it retaining its notorious Internal Security Act. The usual allies of Amnesty International in condemning these excesses now condone them or stand mute as they undertake, or at least consider, similar actions.
There is of course a world of difference between, on the one hand, an essentially liberal-democratic open society that introduces necessary and appropriate security measures to counter real threats to the safety of its citizens and institutions; and, on the other, an essentially illiberal, totalitarian, police state that uses security measures as a front for implementing the political agendas of the powers that be, in the process turning its citizenry and institutions against one another. Between these two extremes, however, lie many shades of grey. One of the greatest challenges of the post-September 11 environment is discerning exactly where along the spectrum between liberalism and repression any proposed domestic security measures will move our society, and in the process shift societal norms regarding what is an acceptable level of surveillance, detention and punishment of organisations and individuals whose behaviour is deemed subversive.
Notwithstanding historical precedents here and abroad, there is no doubt that contemporary Australian society stands firmly towards the liberal rather than the repressive end of this spectrum. We cannot take this for granted however. The 'shock reaction' to the events of September 11 has created a kind of critical vacuum that could be readily filled by draconian legislative or executive action.
We need both strenuous parliamentary scrutiny of any proposed new anti-terrorism legislation, and the inclusion of a 'sunset clause' in any such measure to give us some critical distance and the opportunity of later reassessment. Executive action may prove more difficult to check, however, as the recent furore surrounding the 'children overboard' affair illustrates. The most worrying aspect of that affair is the role played by senior public servants - or, more correctly, the role they did not play - in allegedly failing to challenge the accuracy of a version of events used by the government to considerable political effect before the federal election. Former Prime Minister Paul Keating recently argued this incident represents the consequences of a political agenda characterised by attacks on the integrity of a range of key institutions, upon whose effective functioning a civilised society depends - such as the High Court, the Australian public service, the Australian defence forces, the national broadcaster and the position of governor general - and that the net result is a moral depletion of Australian society that will have long-term costs.3
Any Australian response to the events of September 11 demands an acute appreciation of the vital 'check and balance' roles played by an independent judiciary, public service and media in protecting Australian democracy, and perhaps most especially at times of political or national crisis. We should demand they uphold their institutional independence. We are entitled to expect this. But we are far too complacent if we take it for granted.
Domestic anti-terrorist legislation The most important domestic consequence in the aftermath of September 11 was the long awaited introduction of the Howard government's package of anti-terrorist legislation. The legislation is complex. Some of the more significant elements are contained in the Security Legislation Amendment (Terrorism) Bill 2002 creates the new offence of terrorism and a range of associated offences each carrying a maximum life sentence.
The Bill gives a wide definition to a "terrorist act", including actions that may cause serious harm to people or property, or creates a serious risk to health or safety to the public. Associated offences, themselves carrying a maximum of life imprisonment, are generally strict liability offences, thus it is an offence to possess a "thing" connected to a terrorist act, irrespective of whether the terrorist act actually occurred and with virtually no regard to the mental or 'fault' element of the offence.
The provisions also include measures that will permit the Attorney General to proscribe organisations and outlaw membership of them.4 Once an organisation has been proscribed it will be an offence to be a member of the organisation or assist it in any way. The definitions of what kind of organisations can be proscribed by the Attorney General are so loose that many Australians who protested against the South African apartheid regime or the Vietnam War could have been potential targets under the Bill's reach. The Bill would have allowed the Menzies government to outlaw the Communist Party.5
Other parts of the legislative package include the Suppression of the Financing of Terrorism Bill 2002, the Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002, the Border Security Legislation Amendment Bill 2002 and the Telecommunications Interception Bill 2002. A second tranche of legislation proposes changes to ASIO's powers, to allow ASIO to detain incommunicado for 48 hours even those not suspected of having committed an offence, but who may have relevant information.
It is inevitable that debate about Australia's proposed anti-terrorism legislation will include comparative reference to laws of this kind passed since September 11 in other Western English-speaking democracies whose legal systems, like Australia's, stand broadly in the common law tradition, especially the United Kingdom and the US. But, unlike both these nations, Australia's domestic legal framework lacks anything approaching a comprehensive 'bill of rights' against which measures restrictive of individual liberties can be readily challenged. Because of this, parliamentary and public scrutiny of proposed domestic anti-terrorism laws in Australia needs to be stringent. The political and historical backdrop against which domestic anti-terrorism laws have been enacted in the United Kingdom (specifically, the bombing campaign mounted in mainland Britain and Northern Ireland by the IRA) and the US (specifically, the bombing of the World Trade Centre by Islamic terrorists in 1993, the destruction of the Federal building in Oklahoma City by right-wing extremists Timothy McVeigh and Terry Nichols in 1995, a range of attacks in recent years on US diplomatic or military personnel and citizens abroad, and the September 11 2001 attacks on the World Trade Centre, Pentagon and Washington) is also very different. This difference may lead those countries to adopt legislative approaches that are not appropriate or required in the Australian context.
Spokespeople for civil liberties groups and prominent members of the legal profession have been the most vocal on this issue, urging the Government both to justify any measures of this kind and to ensure proper safeguards are included, to ensure an appropriate balance between 'security' and 'liberty'.6 The Law Council of Australia has argued that the onus is on the Government to ensure, and establish that, any domestic anti-terrorist laws pass three crucial tests7:
Why are existing powers inadequate to combat the potential terrorist threat?
Will the additional powers strike the right balance between public security and the rights of the individual?
Are there adequate safeguards to protect against abuse of the powers?
The Bills, however, were rammed through the House of Representatives in a gagged debate lasting only a few hours in the last week of the autumn sitting. Apart from the Attorney General's second reading speeches, no government members made substantive contributions, even in that curtailed opportunity for debate. Many members of the House, on both sides, wanting to express considered reservations were excluded from expressing their concerns.8
The first, and possibly only, opportunity to scrutinise this large, complex and controversial package of legislation, with public input, will therefore be in the Senate Legislation Committee. Despite the contempt shown thus far for its role, parliament must insist, as a minimum, that the basic tests put forward by the Law Council of Australia are satisfied before giving passage to the legislation.
It should not be thought, however, that the only Australian pressure for extra-ordinary security and law-enforcement powers will come from the Howard government. In the lead up to the recent COAG meeting, in responding to the federal government's call for a co-ordinated fight against terrorism, the Labor premiers and Territory leaders urged the federal government to vest control of the National Crime Authority (under a new name - the Australian Crime Commission) in a body made up of the heads of Commonwealth and State law enforcement agencies. This is dangerous new ground.
In evidence before the Senate Legal and Constitutional Affairs Committee last year, former head of the National Crime Authority, John Broome said: I believe nobody in the parliament would seriously want to confer upon Australian police services the kind of powers which the NCA exercises, yet that seems to be a view that at least some ascribe to - I certainly do not.
Mr Broome's views represent what I understand to be the long-standing position, not only of those appointed to administer the NCA, but also those of the former Hawke and Keating Labor governments. I think it highly unlikely that any former Labor federal Attorney General or minister responsible for law-enforcement would have ever contemplated such an outcome.
The reason for this is that the NCA is a permanent commission of inquiry that has been given powers of compulsion similar to those possessed by a Royal Commission. At least until now, parliament has always taken the view that these exceptional powers need to be exercised co-operatively with, but independently of, law enforcement agencies. This is also the view of the Commissioner of the Australian Federal Police. In his evidence to the Senate Committee Mr Keelty said: The AFP believes it is appropriate for the NCA to exist as an independent agency. It is inappropriate for any police organisation to have the special powers conferred upon the NCA.
Yet this is in effect what the leaders COAG agenda item proposed by giving control of the mooted ACC to a board of heads of state and federal law enforcement agencies.
Spin and fear The immediate and understandable reaction to the confronting events of September 11 was a heightened sense of national and personal insecurity. But as more time passes, and as it becomes clearer to our political leaders what is, and what is not, a source of legitimate fear in relation to those events, the more their consequent responsibility grows to speak honestly -not only to warn but also to reassure.
Many, myself included, believe the Howard government has failed to meet this obligation. To date, public discussion of this important question has been mainly confined to questions relating to the government's treatment and portrayal of asylum seekers - especially at the times of the Tampa incident, September 11 itself, the 'child throwing' incident, and during recent unrest at Woomera detention centre.
Critics of Australia's approach to asylum seekers have variously accused the government of vilifying refugees by having recourse to racial-cultural stereotypes (especially anti-Muslim prejudice); suppressing and distorting information about the plight and behaviour of refugees to render the Australian public less sympathetic towards them; and inappropriately inferring linkages between asylum seekers and terrorist groups. Critics have argued that the government accordingly manipulated many subjectively real but objectively irrational fears about the 'threat' posed to Australia by 'foreigners' - fears fanned by feelings of insecurity arising both from the events of September 11 and from the economic and social uncertainties that stem from globalisation and economic rationalism.9
On the available evidence, it is hard to escape the conclusion that the Howard government sought to harden Australian views against a relatively defenceless target group, to advance a border protection policy agenda designed to appeal to those views, and thereby shore up its own electoral support. These manipulated fears have had a destructive effect on the cohesion and tolerance of Australia's multicultural society. Rising hostility towards Middle Eastern asylum seekers in particular has overspilled to be directed against members of these communities already living within Australia, and indeed against members of other NESB communities, increasingly characterised as 'the enemy within'.
To date, however, sceptical responses to the government's claims about the extent and nature of any terrorist threat to Australia have not extended beyond the asylum seeker issue. It remains to be seen whether broader scepticism will be in order. It may be. The Howard government has shown itself brutally willing to use wedge politics. We should not be surprised if they use this strategy to justify measures the Australian public would normally reject as infringements of their civil liberties. If the government applies the kind of 'spin tactics' it used against asylum seekers to groups or individuals within Australian society, in order to portray them as security threats, we will not be able to say we were not warned.
Australians should be vigilant to oppose any steps down that path. The difficulty of altering or correcting mainstream perceptions of issues, groups or individuals once they have become established in the public mind should not be underestimated.
Loyalty and independence: Some broader questions The post-September 11 environment has been characterised by the 'for us or against us' approach of the Bush Administration, followed by the announcement of its 'axis of evil' agenda. Again, apart from and until recent criticisms by some European political leaders, there has been a dearth of critical response to this approach within nations allied with the US in the 'war against terrorism'.11 Perhaps this is unsurprising, given the apparent implication in the rhetoric of the Bush administration that dissent on the terrorism question necessarily amounts to (punishable) disloyalty. But there is a distinction between loyalty and blind obedience.
The absence of a sustained critical debate is unfortunate because there is a genuine and proper basis for Australia to support a strong and co-ordinated international response against terrorism. It is inevitable that the United States will be at the forefront of any such effort. We should be glad of that. Australia (and the left within Australia) need have no qualms about sharing in genuine efforts to combat terrorism.
However, the kind of unilateralism inherent in the Bush administration's approach to fighting terrorism, and its possible expansion to address other aspects of the United States' larger geo-political agenda, is not inevitably in Australia's interests. Do we want to support a United States attack on Iraq? On Iran? On North Korea? Do we share the United States' apparent determination to proceed with its missile defence system and with an expansion of its battlefield tactical nuclear capacity? Do we side with the US in any conflict between China and Taiwan? Paul Keating's recent speech included a criticism of the desirability, and workability, of unilateralism as a model of strategic or economic leadership in an age of globalisation.12 In relation to the current Australia-US relationship he commented: .. for much of the 20th century Australia had a British century. I hoped that the 21st century would be an Australian century. But John Howard and his conservative supporters are determined to make it an American century by virtually surrendering any real strategic policy independence to the United States and doing it unthinkingly. Surely our sense of nation demands that we have our own role in world affairs, and not allow ourselves to be cast as an extra in the stage play of American unilateralism.13
Unless Australia develops more independence from the Bush administration in the post-September 11 environment, Australians may well pay the price of attaining less, rather than more, national and personal security:
It is possible that a too-close identification with that administration's analysis of and response to the September 11 events will make Australia part of the strategic target of terrorist activities, directed at people or places seen to represent US interests, to a greater extent than was the case before September 11.
Failure to develop a more independent approach may make us complicit with exposing Australian nationals (wherever they may be) to inappropriate attention and, or, punishment by the security, military and law enforcement organs of the US. This argument has been raised already in the ongoing debate surrounding the fate of David Hicks, but could also apply in the case of Australians accused of a far wider range of behaviour deemed by the Bush administration to be against US interests.
It may not be in Australia's interests to become too entwined in advancing aspects of the foreign policy agenda of the Bush administration, at least insofar as they were subject to considerable domestic and international criticism before the events of September 11. This is particularly relevant to our relationship with China and our near neighbours.
It is possible that Australia's security and foreign policy interests will not be consistent with support for unilateral US military action against Iraq, Iran or North Korea. What, if any, undertakings regarding prior consultation have we, or other allies, sought or been provided.
Interestingly it is former prime ministers, Paul Keating and Malcolm Fraser, and former leader of the opposition, John Hewson, rather than any current senior member of the government or opposition parties, who have begun to place these and other concerns about Australia's seemingly inevitable identification with the United States' foreign policy on the public agenda.
I reject the idea that those sharing such concerns are expressing knee jerk anti-US sentiment. Automatic anti-Americanism has always been absurd, and remains grossly so in the wake of September 11. Yet the assumption that Australia's interests will at all times remain the same as those of the US is implausible. The terms of our engagement in the war on terror needs ongoing hard headed debate. This is not treason. Pretending that we do not need to discuss such questions will not make the dilemmas and hard choices that are looming for Australia go away.
The Hon Duncan Kerr is a Labor Member of the House of Representatives in the Australian Parliament, and a former Australian Attorney General and Minister for Justice. This paper was originally delivered at the United Nations Association of Australia (UNAA), Australian Institute of International Affairs (AIIA) and School of Government Community Briefing at the University of Tasmania on 10 April 2002.
The full text of Paul Keating's Manning Clark lecture can be read on the Evatt site at: http://evatt.labor.net.au/publications/papers/25.html. For more information on the failed attempt to outlaw the Communist Party, see Ken Buckley, Barbara Dale & Wayne Williams, Doc Evatt: Patriot, Internationalist, Fighter and Scholar, (Longman Cheshire: Melbourne, 1994), and Elsa Atkin and Brett Evans (eds), Seeing Red: The Communist Party Dissolution Act and Referendum 1951: Lessons for Constitutional Reform, (Evatt Foundation: Sydney, 1992) which can be ordered through the Evatt site at: Order Form.
Notes
1. This paper draws heavily from a forum paper I delivered to the Pluto Institute in March of this year.
2. A useful account of internment in Australia during WWII is M. Bevege, Behind Barbed Wire, Brisbane, UQP, 1993.
3. The Hon. P.J. Keating, "A Time for Reflection: Political Values in the Age of Distraction", Manning Clark Lecture delivered at the National Library of Australia, 3 March 2002.
4. Recall that in the Communist Party Dissolution Case (1951) 83CLR1 an attempt to proscribe the Communist Party was held to be unconstitutional. A later referendum for a constitutional amendment to overcome this decision was narrowly defeated. Then Labor leader Dr Evatt led the No case.
5. But see note 4 above.
6. For criticism of the notion that fairness and justice in the post-September 11 environment demand no more than balancing the two values of freedom and security, see R. Dworkin, "The real threat to US values", The Guardian, 9 March 2002.
7. Law Council Media Release, "Counter Terrorism Laws Must Pass Tests", 17 February 2002. See further Tony Abbott (President of the Law Council of Australia), "The World Since September 11, Address to the Australian Academy of Forensic Sciences", 13 February 2002, including his discussion (at pp 14-15) of Lord Lloyd of Berwick's "four principles" applying the rule of law to the challenge of terrorism.
8. The Hon Laurie Brereton MP circulated an excellent speech he had been prevented from delivering.
9. See further D. Kerr, Elect the Ambassador! Building democracy in a globalised world, Sydney, Pluto Press, 2001. Arguably this is a practical and ideological continuation of the Hansonite trend in Australian politics; broad-based support for One Nation arguably arose in part due to the failure of the major political parties meaningfully to address the new uncertainties and inequalities that attend globalisation, and populist xenophobic policy and rhetoric became a lightning rod for this widespread community disaffection and alienation.
10. See J. Stauber et al, Toxic Sludge is Good for You: Lies, Damn Lies and the Public Relations Industry, Common Courage Press, 1995. Of relevance here are the debates about the appropriate government response to genuine community fears in relation to crime, about 'racial profiling' of criminal suspects by law enforcement agencies and, or, the media, and about the consequences of fanning both fear and prejudice in this area.
11. See "Peremptory tendencies: France fires a warning shot at the US", The Guardian, 7 February 2002.
12. Keating, op. cit., pp 8-10.
13. Ibid, p 10.
Suggested citation
Kerr., Duncan, 'War on terror', Evatt Journal, Vol. 2, No. 4, June 2002.<https://evatt.org.au/post/war-terror>