– by Hanifa Abdiraihan
In the middle of September, Australian media was thrown into a small uproar with news of the now-famous large-scale raids. During the operation, over 800 officers stormed across Sydney and Brisbane, making several arrests along the way. One man has since been charged with a terrorism offence.
These raids came a week after the government raised the terror threat level to ‘high’ for the first time in over a decade. It is the second highest level in Australia’s National Terrorism Public Alert System, which judges the likelihood of terrorist threat. The change was prompted by concerns about fighters returning to Australia from the ISIS-related conflict in Syria and Iraq.
This has also brought with it important developments in the form of new counter-terrorism legislation. The Counter-Terrorism Legislation Amendment Bill, or the “Foreign Fighters’ Bill” as it is popularly called, has become controversial for its proposed measures.
One of the serious concerns posed by the bill is, at best, a distortion of legal rights, and, at worst, denial. Among other things, it will require those travelling to certain regions to prove that, essentially, they are not there to commit terrorism-related acts.
Prime Minister Tony Abbott has recently confirmed the government will accept all 37 changes outlined in the bill.
Meanwhile, Attorney-General George Brandis has repeatedly claimed that the bill does not create a a “reverse onus of proof” — the reverse of ‘innocence until proven guilty’.
It will also bring back the preventative detention order, which allows authorities to detain a person for questioning without charge. Australia’s current laws permit seven days of renewable detention, theoretically allowing indefinite detention. Lawyers are only allowed until they are deemed to be an obstruction to the questioning. Refusing to answer is a crime.
Other misgivings about the bill involve the troubling scale of privacy invasion. The Foreign Fighters’ Bill will allow a wide broadening of ASIO’s powers. Particularly concerning is its ability to use a single warrant to obtain intelligence from multiple computers and networks, including the Internet—with no specified limit—as well as using “necessary” force as long as it has been justified in a warrant. They will be allowed to physically enter premises without a warrant under the bill’s ‘delayed notification scheme’.
ASIO officers will also be immune from any prosecutions arising from the execution of a warrant. Any related information will not be made publicly available. In fact, under the bill, it will be a crime for journalists and whistleblowers to disclose any intelligence information, whether or not they judge it to be in the publics’ interest to know. The offence will be punishable by up to 10 years’ jail.
When asked by reporters during the committee stage consideration on whether the bill might be “an excessive constraint on freedom”, Brandis answered, “Freedom is not … the usual experience of mankind. [It] must be secured, and particularly at a time when those who would destroy our freedoms are active, blatant and among us.”
Brandis described the bill as “proportionate, a judicious and a limited response to the threats we face.”
Jon Lawrence, chief executive of Electronic Frontiers Australia, a non-profit organisation representing the rights and freedoms of online users, told the Guardian he believes that the bill is “a clear attempt… to avoid an Australian Ed Snowden”.
In 2013, Edward Snowden, a contractor for the USA’s National Security Agency, revealed the extent of the NSA’s pervasive surveillance programme, PRISM. Snowden currently resides in Russia.
Greg Barns, the Australian Lawyers Alliance representative, took it further, also commenting to the Guardian, “…[T]his takes the Snowden clause and makes it a Snowden/Assange/Guardian/New York Times clause.”
There is a question of proportionality that the Foreign Fighters’ Bill presents. When looked at objectively, the bill proposes sweeping restrictions—even the stripping of a fundamental legal rights altogether—all, again, in the name of counter-terrorism. The presence of checks and balances within these measures are difficult to point to, and even the act of ‘whistleblowing’ in matters of public interest will be criminalised.
How, then, are these extreme measures justified?
Brandis’ media release regarding the bill explicitly names domestic terrorist threats as its target. ‘Terrorism’ is a word that, in the twenty-first century, has become something of a panic trigger. In the wake of events like 9/11 and the bombing of the Boston Marathon, it is not difficult to see why.
A simple definition of terrorism is ‘the use of fear as a tool with an ideological or political intent’. Depending on whom one asks and when, there exists a great range of groups and individuals that could be labeled terrorists. The French Revolutionary government, for one, was a terrorist group in the late eighteenth century. The Provisional Irish Republican Army is widely considered one.
There are also those who argue that the United States is a terrorist group.
However, when it comes to official rhetoric, it is hard to find a constructive discussion covering the emotive issue of national security. President Bush famously said regarding the war on terror, “You are with us or against us.” More recently, Prime Minister Tony Abbott has made comments about being in “Team Australia”.
The bill is a more comprehensive—and legally binding—representation of this mindset. It also comes at a time when Australia has pledged support in the US-led coalition of troops fighting ISIS in the Middle East. In the view of the government, it is ‘justified’ because it is ‘necessary’.
“Regrettably, for some time to come, the delicate balance between freedom and security may have to shift,” Abbott said in a speech to Parliament. “After all, the most basic freedom of all is the freedom to walk the streets unharmed and to sleep safe in our beds at night.”
At the same time, one must ask how safely Australians can sleep, when those tasked with ensuring their safety could enter the privacy of their houses at any moment without a single notice—when they will have to demonstrate their innocence first, and be released from detention later.
Photo: Flickr jayneannd