By Dr George Venturini*

Testing the thesis . . . Obsession with crime and punishment (continued)

A leading Stock Exchange gambler, one of the major supporters of the New Right agenda and the mining industry’s campaign against land rights for Black Australians, found a way of grounding on divine authority – Christian, of course – that industry’s demands that it be allowed to mine on land claimed by Indigenous People as sacred. Even more bizarrely, he warned that if land rights were granted that would constitute a sanction of “infanticide, cannibalism and cruel initiation rites.” It would be a “step to the world of paganism, superstition, fear and darkness.” He had no restraint in plumbing the depths of such dark, racist fears. Howard said not a word – just sat on the side, comfortable and relaxed.

In the nineties, during the Native Title debates, Australians complacently heard that the original inhabitants of the continent should be treated as outsiders who threatened to appropriate “our” lands, invade “our” suburbs and “take what does not belong to them.” Some State premiers campaigned – successfully! – on such outrageous rubbish. On that ‘platform’, at the end of that decade a comprehensively illiterate candidate obtained more than one million votes and was able to enter the Senate.

The Australian Security Intelligence Organisation now has had for almost twenty years the power to detain and question people without charge or trial. A.S.I.O. and Federal Police officers can raid anyone’s home or office, at any hour of the day or night, and forcibly take one away, strip-search her/him, interrogate and hold her/him incommunicado, for all practical purposes indefinitely.

The initial empowering Act and the many which followed represent a fundamental assault on basic human rights. They give the security and intelligence agencies unfettered arbitrary and repressive power, marking a dramatic step towards the implementation of authoritarian rule. A person has no right to know why s/he is being picked up for interrogation. If s/he resists, force, including lethal force, may be used. If s/he refuses to answer any question or hand over any material that A.S.I.O. alleges s/he possesses, s/he faces five year’s gaol. A detainee, including teenagers as young as 16, is unable to contact her/his families, friends, political associates or the media. In effect, one can be kidnapped by the secret police without anyone’s knowledge. If one knows the name of a lawyer, s/he may contact her/him for legal advice, but only if A.S.I.O. does not object to the lawyer. Initial detention can last for up to seven days, including three eight-hour blocks of questioning over three days, but the Attorney-General can easily approve further seven-day periods. To justify serial extensions, A.S.I.O. and the government simply need to claim that ‘additional or materially different’ information has come to light.

Almost simultaneously, all States, which were once all governed by ‘Labor’, responded by enacting complementary legislation, handing over the State’s anti-terrorism powers to the Howard Government, and with the enthusiastic support of the ‘Liberal’ Party, of course. Mirroring acts enabled the police to obtain warrants to enter any premises, by force or impersonation if necessary, to search and seize anything without the knowledge of any occupier or owner. The New South Wales Government led the way, so to say. In Victoria, the second most populous State, the government had legislation enacted which gives the State police the power – for the first time – secretly to enter, search and ‘bug’ homes, as well as forcibly to enter and search premises. In Queensland, the ‘Labor’ Premier was moved to giving ‘serious consideration’ to 50 Crime and Misconduct Commission recommendations, which included allowing police to conduct covert searches without warrants.

More illiberal provisions followed at the end of 2003, when the Federal Government was able – with the concurrence of Labor – to have legislation passed which effectively forbade all public protest against, or even reporting of, the use of the new detention and interrogation powers of A.S.I.O. It is now a crime, punishable by up to five year’s gaol, publicly to mention any operation involving A.S.I.O.’s unprecedented powers to detain and interrogate people without charge, simply on the allegation that one may have information relating to terrorism.

The very fact that someone has been detained cannot be discussed publicly for up to 28 days, until after the detention warrant expires. No other information about the detention can be disclosed for two years. Moreover, even if A.S.I.O. itself breaks the law, for example by detaining someone for more than seven days without obtaining a new warrant, any journalist who reports the case could be imprisoned.

In effect, these measures outlaw political campaigns against arbitrary or illegal detentions.

A lawyer’s activity is also curtailed: the law prohibits a detainee or her/his lawyer from alerting the family, the media or anyone else that s/he has been detained.

As a result of more than two decades of unrelenting ‘law-and-order’ campaigns, Australians are far too ready to gaol people rather than seeking other forms of sentencing. Too many politicians have been seduced into a kind of ‘penal arms race’, and into implementing costly and ineffective policies. They have embraced penal populism, enacting policies which are based primarily on their anticipated popularity rather than their effectiveness.

Some eminent lawyers, and even the Human Rights and Equal Opportunity Commission, condemned the Howard Government’s Anti-Terrorism legislation as a violation of international human rights law, but Prime Minister Howard and the Australian State ‘Labor’ premiers stood together in favour of the repressive measures.

Centuries of political and social struggles have attempted to stop barbaric methods being employed by the State. Demands for strict limits on the powers of the formerly monarchical and absolutist state were at the centre of the great ‘bourgeois’ revolutions even in England in the seventeenth century, and in France and the United States in the eighteenth century. The struggle against such methods formed the basis of the liberal doctrines, based on the rights of the individual, associated with the rise of the bourgeoisie. But Australia has had no revolution – bourgeois or otherwise – and still has no Bill of Rights.

According to a rather recent Amnesty International survey, the techniques currently employed by various governments include “beating, whipping, burning, rape, suspension upside down, submersion into water almost to the point of suffocation, and electric torture with shocks of high voltage on various parts of the body, very often on the genitals.” But those things happen elsewhere, ‘over there’. Abu Ghraib, Bagram, Guantánamo are ‘deplorable necessities’, and anyway beyond Australia’s control. Notions of complicity with a Great-And-Powerful-Friend are too esoteric for ignorant Philistines.

If the police transports a Black Australian for many hundreds of kilometres, on a hot day, in a van in which the temperature was estimated at 50 degrees Celsius, without windows, air and air conditioner, without ever stopping for the prisoner to relieve himself, without food or water, there is a mixture of disbelief, disapproval – suddenly set aside with a ‘dirty nigger’ comment … and a promise by the State to investigate. It happened less than ten years ago – no one heard about it since.

There is more: to the above list of violent torture practices prepared by Amnesty International, the organisation was forced to add “psychological devices, including threats, deceit, humiliation, insults, sleep deprivation, blindfolding, isolation, mock executions, witnessing torture of others (including one’s own family), being forced to torture or kill others, and the withholding of medication or personal items.” It should be emphasised: even sleep deprivation, because the Attorney-General of the Howard Government – yes, Mr. Philip Ruddock expressed the view that that is not a form of torture! And damned the Universal Declaration of Human Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, both of which were ratified by Australia! Was the Attorney-General influenced by a well-known Harvard law professor’s call – after 9/11 – for United States judges to issue ‘torture warrants’?

Whatever the reason, that Attorney-General’s view might have encouraged two Australian academic lawyers openly to advocate torture in a paper published in 2005.

When governments become accustomed to abuse of power through the use of fear and amidst the populace’s indifference; there is no limit to what they may do. In June 2008 the ‘Labor’ Premier of New South Wales had no difficulty in introducing sweeping police powers further to suppress civil liberties during the month-long Catholic World Youth Day events in Sydney, culminating with a massive address by Pope Benedict XVI. By executive order and regulation, which established more than 600 ‘controlled areas’ throughout Sydney, Police were empowered in control areas to search members of the public, their vehicles and personal belonging and to arrest and fine those whose actions may be deemed offensive to Catholic pilgrims. The ‘controlled areas’ included some 500 Catholic and State schools, tertiary institutions – including the University of Sydney and University of New South Wales, public transport hubs, parks – including the Botanic Gardens and a major park, and cultural venues – including the Art Gallery of New South Wales, the State Theatre and the Sydney Opera House, a racecourse and sporting venues.

Tomorrow: Testing the thesis . . . Obsession with crime and punishment (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.