By Dr George Venturini*
Testing the thesis (continued)
(Obsession with national security)
National security, a concept which travels together with that of terrorism – and anti-terrorism, is as old as history, is not subject to definition, but has almost always been used by those in power. It has become a matter of expanding interest and mushrooming legislation which are directly proportional to the decrease of basic resources.
It is now placed well beyond doubt that the assault on the Greater Middle East has been motivated by an increasing search for oil. A planned 1,800 kilometre pipeline from Turkmenistan to a seaport to be built on Pakistan’s Arabian Sea coast had been on the drawing board years before the outrage of 11 September 2001. That outrage was simply the pretext for armed intervention. Australia followed the leader without questioning, as it becomes a vassal state. Needless to say there have been serious ‘blowback’ consequences – broadly speaking a further reduction of the already limited civil liberties in Australia.
That does not seem to be a matter of great concern to the even better than average Australian, who is told – and would mindlessly repeat – that there are sufficient guarantees in the common law, and if one has ‘done nothing wrong, one should have nothing to worry’. This poses a serious contest between knowledge and ignorance, in which who and what ‘wins’ does not really matter, because a power élite – and not necessarily represented by governments – has concluded that it is so: there is ‘the law’ to protect civil liberties, and there is a multitude of defences in the numerous anti-terrorism laws enacted since 2001, and supplementing the already draconian provisions of laws such as the Crimes Act 1914.
Federal legislation relating to terrorism as at 11 September 2001 was already available in 32 acts of Parliament. In addition there are in the criminal law of Australia provisions relating to the crime of sedition. Effectively dormant for nearly half a century, these provisions were returned to public notice in 2005.
New provisions were added. They are, principally:
– short term detention for named individuals: without evidence, and without criminal involvement. The detainee may be interrogated by the Australian Security Intelligence Organisation – A.S.I.O. Disclosing that an individual has been so detained or interrogated is, in almost all circumstances, a crime.
– control orders, potential for almost unlimited restrictions on named individuals: freedom of movement; freedom of association – including one’s lawyer; banning the performing of named actions and owning named items – including actions and things necessary to earn a living; unlimited requirements to be, or not to be, at specified places at any or all times of the day and week; wearing a tracking device; and including encouragement to submit to ‘re-education’. These restrictions may be inflicted for a period of one year before review.
– significant restrictions on the right of any person to express certain opinions: including criticism, or ‘urging disaffection’, of the sovereign, the constitution, the government, the law, or ‘different groups’. Exemptions may exist where the target of criticism is agreed to be ‘in error’. Exemptions appear to exist where the claim is that a feature of a group of people is in some way offensive to the mainstream of society; onus of proof of goodwill is on the defendant – there is no presumption of innocence.
It becomes a crime, punishable by life imprisonment, recklessly to provide funds to a potential terrorist. Funds include money and equivalents and also assets. It is not necessary that the culprit know the receiver to be a terrorist, only that s/he is reckless about the possibility. It is not even necessary that the receiver be a terrorist, only that the first person be reckless about the possibility that s/he might be.
Police can request information from any source about any named person: any information about the person’s residence, telephone calls, travel, financial transactions amongst other information. Professional privilege does not apply. It may be an offence to disclose that relative documents have been obtained.
A legislative provision for ‘hoax offences’ will create a more serious charge for people who cause chaos for the public and emergency services by dreaming up devastating terrorist-inspired hoaxes.
New anti-terror legislation was introduced in three stages:
In July 2014 the National Security Legislation Amendment Bill (No.1) 2014 was introduced and it was passed by Parliament on 25 September 2014. It became the National Security Legislation Amendment Act, No. 108, 2014 and entered into force on 2 October 2014, an Act to amend the law relating to national security and intelligence services, and for related purposes.
Legislation submitted by Attorney-General George Brandis on 16 July 2014 would have made the Australian Security Intelligence Organisation untouchable. Among the many measures designed to protect it is total ban on disclosing information about “special intelligence operations” on penalty of imprisonment.
The national interest is invoked more and more at the expense of the public interest. The bill submitted by Attorney-General Brandis was the omen of a serious blow to freedom of information and stood in contradiction to international treaties that Australia has signed.
The draft, entitled “National Security Legislation Amendment Bill”, provided for a new offence, liable to five years’ imprisonment, for anyone who discloses information without authorisation about “special intelligence operations”. The sentence could be increased to ten years if the information “endangers the health or safety of any person or prejudices the effective conduct of a special intelligence operation.”
Human rights violations can thus easily be covered up by the A.S.I.O., especially since the classification of an operation as “special intelligence” would require only the consent of the security director-general or his deputy.
The bill was also intended to strengthen the surveillance powers of the agency.
“This bill is dangerously imprecise and does not take account of the public interest in any shape or form, and as such it is a threat to freedom of information and a violation of international standards.” said Benjamin Ismaïl, head of the Reporters Without Borders Asia-pacific desk. “Whistleblowers should not be subject to threats of this kind when they are carrying out the important task of disseminating news and information on behalf of their fellow citizens. We call on the attorney-general to scrap this bill, which is far too restrictive to be amended appropriately.”
Clause 35P, entitled “Unauthorised disclosure of Information” was aimed any “person [who] commits an offence if (a) the person discloses information; and (b) the information relates to a special intelligence operation. Penalty: Imprisonment for five years.”
Art.19 of the International Covenant on Civil and Political Rights, of which Australia is a signatory, allows national security as legitimate grounds for restricting freedom of information but on the other hand General Comment 34 by the U.N. Human Rights Committee on Art. 19 says these restrictions must be closely regulated, exceptional, specific and justified.
The law would make the link between national security and special intelligence operations a matter of routine. It remains up to the government to demonstrate to the courts on each occasion that such operations are essential from a security standpoint and the dissemination of information about them could affect national security.
The purpose of the Act appears to be to avoid the emergence of an Australian Edward Snowden, the American whistleblower who published transcripts of wiretaps by the National Security Agency. The Australian Broadcasting Corporation published some of the documents leaked by Snowden showing that the Australian intelligence service had tapped the phones on Indonesian leaders including that of President Susilo Bambang Yudhoyono.
Their publication caused a diplomatic row between the two countries and strong criticism by the government of the whistleblower and the news organisations which published the information.
Prime Minister Abbott was highly critical of A.B.C. “The station – noted Reporters Without Borders – is a frequent target of abuse by the prime minister. In January  [Abbott] took issue with an A.B.C. report that a group of asylum seekers had been abused by the Australian Navy, saying: “News that endangers the security of our country frankly shouldn’t be fit to print.” (‘Whistleblowers could face up to 10 years’ imprisonment in Australia’).
In September 2014 the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill was introduced; it was passed on 29 October 2014 and assented to on 3 November 2014. As part of this Act the Crimes (Foreign Incursions and Recruitment) Act 1978 was repealed.
In October 2014 the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 was introduced to amend the Telecommunications (Interception and Access) Act 1979, and then referred to the Parliamentary Joint Committee on Intelligence and Security. The Senate passed the bill as the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 on 26 March 2015. Assent was received on 13 April 2015.
Tomorrow: Testing the thesis . . . Obsession with national security (continued)
* In memory of my friends, Professor Bertram Gross and Justice Lionel Murphy.
Dr. Venturino Giorgio Venturini devoted some sixty years to study, practice, teach, write and administer law at different places in four continents. In 1975 he left a law chair in Chicago to join the Trade Practices Commission in Canberra. He may be reached at George.Venturini@bigpond.com.au.