In 1956, science fiction author Philip K. Dick wrote the short story “Minority Report”. In it, a shadowy government agency known as “pre-crime” arrests people in anticipation of crimes they suspect individuals will commit in the future. What appears as a dystopian fictional nightmare in 1956 has become a reality in Australia 60 years later.
One of the major legal transformations associated with the introduction of the various anti-terror acts in the 15 years since 9/11 has been the normalisation of the idea that you can be charged with a crime that you have yet to commit.
The Australian Security Intelligence Organisation (ASIO) has the right to seek warrants that allow the detention of someone suspected or someone related to someone suspected of considering a terror offence. This person can be detained in custody with no right to confidential legal counsel and no right to see the evidence brought against them.
Furthermore, the Terrorism Act 2002 makes it a crime to “provide or receive training, to possess a ‘thing’, or to collect or make a document, if (in each case) that conduct was connected with preparation for, the engagement of a person in, or assistance in a terrorist act”.
In 2010, these laws resulted in the conviction of three men for “preparing to prepare” an attack on the Holsworthy Army Base. One of the men visited the barracks and another had a phone conversation with a sheikh, seeking religious counsel about the moral virtues of possibly committing an act.
The sheikh eventually answered in the negative and advised the men against any action. Even the Victorian Supreme Court judge responsible for sentencing the men, justice King, admitted that “the conspiracy was not that much further along than just sitting and thinking about it”. She nevertheless sentenced them to 18 years’ jail. For thought crime.
What’s more shocking is that, legally, these “preparatory” offences are committed if the person either “knows or is reckless as to the fact that they relate to a terrorist act”. Being “reckless” can mean a whole range of things. It can mean that you say or write something that may inadvertently encourage someone else to engage in terrorist activity.
For instance, Division 102 of the Criminal Code imposes a maximum penalty of life imprisonment “where a person provides or collects funds and is reckless as to whether those funds will be used to facilitate or engage in a terrorist act”. This means that someone who donates money to a charity that turns out to have some putative involvement in terrorism could be imprisoned for life.
The definition of terrorism is suitably broad for a ruling class looking to criminalise a wide range of anti-government activity. Section 101.1 of the Criminal Code defines terrorism as “conduct engaged in or threats made for the purpose of advancing a political, religious or ideological cause”. The conduct or threat must be designed to coerce a government or population by intimidation. It must involve “harm” – broadly defined.
Added to this is “urging violence”. For example, it is an offence punishable by seven years’ imprisonment to “urge the overthrow of the constitution or government by force or violence, or to urge interference in parliamentary elections”.
Such definitions are disturbing. Again, “interfering in parliamentary elections” could involve encouraging voters to cast donkey votes or rip up ballot papers. Left wing newspapers regularly run pieces on the necessity of overthrowing many and various governments. The fact that such laws have been penned indicates how far we have come.
Under such legislation the United States Declaration of Independence, with its claim that “it is the Right of the People to alter or to abolish [the Government], and to institute new one”, could be deemed a terrorist document.
Crime by association
A law introduced in 2014 that prohibits the advocacy of terrorism extends this issue of incitement into even more alarming territory. An organisation can be listed as terrorist if it “directly praises the doing of a terrorist act in circumstances where there is a substantial risk that such praise might have the effect of leading a person … to engage in a terrorist act”.
If these laws had been enacted in the past they would have meant that the author of an article supporting the actions of Nelson Mandela in his struggle against apartheid in South Africa would become liable if someone might have read that article and acted upon it in a manner deemed terrorist by the state.
Today, the organisation of any author who is accused of “praising terror” can be listed. Being a member or even associated with a member of a listed terrorist organisation can incur up to 10 years in prison.
The mutability of what constitutes a “terrorist organisation” was revealed in the trial of 13 Muslim men in Melbourne in 2005-09. These young men were arrested after more than a year of intense surveillance of conversations between them and a radical Islamic preacher, Abdul Nacer Benbrika.
An extraordinary 27,000 hours of police surveillance revealed nothing more criminal than discussions about the morality or immorality of revenge actions against Australians for the government’s crimes in Afghanistan and Iraq. No specific or concrete terror actions were planned, and they were never charged with planning a terrorist attack.
Nevertheless, the state charged them with membership of an unspecified, unlisted, unnamed terrorist organisation. The attorney-general declared it so – and a few more men who had had some association with Benbrika were charged with “supporting or providing funds” to a terrorist organisation.
Greg Barns, one of the defence lawyers in the Barwon 13 trial, pointed out the absurdity of the situation: “An organisation can be a terrorist organisation even if it has no terrorist act in mind”. Such realities call to mind Alice in Wonderland. “‘When I use a word’, Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean – neither more nor less’.”
Punished for being Muslim
The Barwon 13 trial also brought to light a number of other disturbing aspects of the anti-terror legislation. One of the most shocking revealed the prejudice against giving terror suspects bail.
This meant that from 2005 until 2008, when the judge handed down a decision, the defendants were held in the maximum security Barwon prison. Here, some as young as 19 were kept shackled in isolation for up to 18 hours a day. During their trial, they were strip searched every day and transported back and forth on the hour-long journey with their arms shackled to their waist and their ankles tied together.
Four of the 13 were found not guilty of any charges but were held in Guantanamo Bay-like conditions for, one can only suspect, being Muslim and associating with other Muslims. Four of the 13 were convicted on such spurious grounds that Michael Pearce from Liberty Victoria told reporters that they were victims of one of the “most sustained assaults on civil liberties in 50 years”. “Their treatment is an affront to the most basic principle of the rule of law”, he said.
The current targets of the anti-terror laws are Muslim. Nineteen of the 20 proscribed organisations are Muslim, and of the 46 people charged under the laws, all, with the exception of a couple, identify as Muslim. Not one of these people has been charged with actually committing a terrorist offence. All are offences of association, of planning or planning to plan.
State representatives claim that nipping terrorist actions before they happen is more important than civil liberties. But such claims are bogus when most of the terrorist atrocities they claim to be thwarting were never even in the planning stages.
One young man, Faheem Lodhi, was sentenced to 20 years in prison despite the fact that, according to a lawyer in his trial, he “had not yet reached the stage where the identity of the bomber, the precise area to be bombed or the manner in which the bombing would take place had been worked out”.
As civil liberties lawyer Rob Stary told Katherine Wilson in an interview for Overland: “They talk the talk, and it’s dangerous talk. But I can say whatever I like about who the real Iraq or Palestinian war criminals are, and how they should be brought to justice, and I won’t be imprisoned for it. Not unless I convert to Islam”.
When Muslim kids mouth off, they can be locked up for decades. If anything is likely to prompt feelings of hatred, anger and frustration that lead to the desire to commit terrorist acts, it is this kind of systematic legal persecution.
Islamophobia is the ideological mechanism through which the state has managed to get through such draconian legislation. Concerted public media campaigns vilifying Muslims – representing them as medieval barbarians intent on bringing down Western civilisation – has had its effect. Opposition to the anti-terror laws is minimal – the conflation of Islam with terror has been achieved.
Fifteen years in the making
Prior to 9/11, politically motivated violence was dealt with under criminal law. This all changed after 2001. In March 2002, federal attorney-general Darryl Williams introduced the first package of anti-terrorism legislation to parliament. He said the laws were “exceptional” but that “so too is the evil at which they are directed”.
Hyperbole abounded. Australians were told to be alert to shadowy internal threats and to report any “suspicious” activities they might witness.
From 11 September 2001 to the fall of the Howard government, the federal parliament enacted 48 anti-terror laws. In other words, on average a new anti-terror statue was passed every seven or so weeks under the Liberal government. The Labor Party supported the overwhelming bulk of these laws.
When Labor came to power, the pace of lawmaking slowed but the fundamental approach remained the same: use the terror threat to usher through increasingly draconian laws. Indeed, the Rudd government actively opposed independent reviews into the passing of its own anti-terror legislation.
Abbott came to office with an open and aggressive agenda. He was unabashed in 2014: “Regrettably, for some time to come, Australians will have to endure more security than we are used to and more inconvenience than we would like … the delicate balance between freedom and security may have to shift”. The scales now well and truly have tipped.
Under Abbott and Turnbull, the existing anti-terror legislation has been strengthened and expanded, most dramatically with the introduction of astonishingly extensive data retention laws.
All of this frantic legislative activity has been accompanied by regularly staged anti-terror raids.
The Australian state has far exceeded the UK, the USA and Canada in the number of laws enacted. UNSW professor George Williams argues: “It would be unthinkable, if not constitutionally impossible, in nations such as the US and Canada to restrict freedom of speech in the manner achieved by Australia’s 2005 sedition laws”. US author Ken Roach describes Australia as engaging in “hyper-legislation”.
While initially introduced as “emergency legislation” to deal with imminent terror threats, anti-terror legislation has not only stuck, but has crept into other legislative areas. Laws recognised as exceptional, even by their proponents, are now used against groups and individuals who have nothing to do with the “war on terror”.
Bikie gangs and their members are subject to laws virtually identical to anti-terror legislation. The Rann Labor government in South Australia began the trend, drawing dramatic comparisons between bikies and terrorists. In 2008, Rann said, “Organised crime groups are terrorists within our communities” and described bikies as “an evil within our nation”. The laws passed almost without a whimper of opposition.
In Queensland, bikie gangs have been “declared” in the same way that so-called terrorist organisations have – which means anyone associated with a gang can be arrested and charged. If you are a member of a gang you cannot be seen with one or more “criminal associates”.
Bikies are also subject to something very similar to control orders – one of the most controversial aspects of the anti-terror legislation. They can be placed under house arrest, and have their movement and their oral and electronic communications limited. These restrictions can be decided in a secret court hearing, and the person will discover if they are subject to an order only after their arrest. All states have introduced similar laws.
The depth and breadth of the anti-terror legislation provided the perfect precursor to the use of equally (if not more draconian) laws against construction workers in the Howard government’s Australian Building and Construction Commission (ABCC).
Turnbull is now preparing to fight an election over the reintroduction of the body. The ABCC’s coercive powers mirror ASIO’s. It has the right to hold secret interviews and jail those who don’t cooperate. Habeus corpus is out the window. Construction workers will again have no right to silence and no right to be represented by the lawyer of their choice. The terror bogey was simply the thin end of the wedge.
It is clear over the 15 years of the “war on terror” that many legal rights have disappeared. Basic legal assumptions like innocent until proven guilty, the right to silence, the right to a fair trial and the right to legal counsel no longer exist in expanding areas of the legal system. What’s more, the state’s powers to watch, listen, detain and punish have grown dramatically, and there is no indication that the government wants to pull back.
The US whistleblower Edward Snowden said of similar actions in the USA: “These programs were never about terrorism: they’re about economic spying, social control, and diplomatic manipulation. They’re about power”.
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