Terror legislation: this law and order binge will not protect Australians
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Version 0 of 1. Have Australians been feeling, in recent times, insecure and exposed to more than unusual doses of terrorist related threat? If so, that mood hasn’t penetrated the bubble I occupy. Nonetheless, that is no reason not to have another season of Terror Theatre. Grim faced ministers line up on stage and make dire predictions about the possibility of jihadists severing the heads of peace-loving people in Team Australia. The prime minister assured us that it was “the last thing we want”. So out rolls a bevy of loosely defined measures, including: extending Asio powers to detain, question search and seize; expanding the category of groups or individuals that can be banned; wider powers to arrest without warrant; making it easier to obtain control orders; a new crime of travelling to a designated terrorist area; wider powers to suspend passports; and lots more money for security agencies. Next instalment: the collection and retention of electronic data that reveals the fingerprints and footprints of everyone in the Team. With the exception of the criminalisation of overseas travel to proscribed destinations, most of the measures pile on more of what we already have. Terror Theatre is the place where this government can perform more comfortably, or at least more comfortably than selling a discriminatory budget, or odious legislation to release the Team Australia’s inner bigot. Curiously, section 18C of the racial discrimination act has been playing a hitherto unrecognised part in keeping us safe from terrorism. The prime minister explained the connection: When it comes to cracking down on terrorism and cracking down on things that aid and abet terrorism ... as I said, the 18C proposal was becoming a needless complication. Dropping the abolition of the right to offend and insult people on the basis of race in order to protect our counter terrorism initiatives was an award winning piece of conflation. But is this entirely a piece of theatre, or are there elements of reality? Sydney barrister Bret Walker SC, the former independent national security legislation monitor, thinks there is a real terrorist threat from Australian jihadists returning after fighting in Iraq and Syria. He says it is impossible to know how many Australians are engaged in those war zones, but whatever the number we think it is, it would be wrong. It’s not entirely comforting to know Asio and other agencies are not already on top of this, with all the massive powers and resources at the disposal. Iraq and Syria have been hot spots for years, but after a considerable delay have been moved to the front of the stage. Delay and inaction also characterise the response from government. Walker says in his most recent report to the prime minister that his previous recommendations to “enhance the capacity of Australian authorities and agencies to detect, investigate and prosecute terrorist offences” were routinely ignored. The year before, he was saying the same thing: “When there is no apparent response to recommendations that would increase powers and authority to counter terrorism, some skepticism may start to take root about the political imperative to have the most effective and appropriate counter-terrorism laws.” Meanwhile, The Sydney Morning Herald has revealed what has been happening off stage, with terrorists linked to passport, visa and immigration fraud, none of which involves boat arrivals, and all under the nose of the terror alert government. We don’t know the terms of the proposed new law designed to apprehend and prosecute people returning from designated areas “where terrorist organisations are conducting hostile activities”. But we do know some unsettling things – that the law will apply retrospectively, and those charged will face the burden of proving that they had a “legitimate purpose” in travelling there. Presumably a government minister will do the designating of areas where terrorists operate. Syria and Iraq are obvious ones. What about other places where terrorist related activities take place, like Indonesia, India, Pakistan, Afghanistan, Israel and its occupied territories, West Papua? Will the legislation specify how much open, as opposed to covert, warfare has to be going on before an area is designated? All of this is splendidly vague. If the onus of proof is reversed, this does impact on the presumption of innocence and takes the shine off the “golden thread” running through the web of criminal law. The legal burden of proof was reversed by the British parliament in relation to a defence for a terrorism offence. However, in 2004 the House of Lords said that this was a disproportionate response, in view of the severity of the penalty that could be imposed for the crime, which was 10 years imprisonment and the stigma of conviction. The Europeans have recognised that the presumption on innocence is not absolute, and the Strasbourg court has recognised reversals of the onus of proof where they are proportionate and “confined within reasonable limits”. Here, the high court has confirmed that legislation which reverses the onus of proof poses no constitutional difficulty if it is within a head of power. Under Commonwealth, ACT, NSW, South Australia, Tasmania and Western Australia law, a person who is in possession of a prescribed quantity of proscribed drugs or plants is presumed, unless the contrary is proved, to possess the drugs or plants for the purposes of sale or supply. The Asio act currently requires a person to appear for questioning once a warrant is issued. If they have information and fail to give it, there’s jail time ahead. Importantly those who are questioned have the burden of proving they do not have the relevant information or record. Now the government is making the case that it is difficult to gather the proof from a foreign and troubled land about the activities of terrorist-related Australians - hence the need to dispense with the traditional model of the state proving an accused’s guilt. You have to prove you went to Aunty Fatima’s funeral in Mosul and that all those people with guns in the family photos were just friendly cousins. We’ve seen before the miscarriage of justice that can occur when authorities frame-up Australians found in war zones. Given half a chance, reversing the onus could catch on more widely in the criminal law, particularly where governments are on a law and order binge. |