Counter-Terrorism and the Criminalisation of Politics: Australia's New Security Powers of Detention, Proscription and Control

Article excerpt

In the post-11 September security developments, both internationally and domestically, counter-terrorism has become the "new organising principle" for a resurgence in national security rhetoric and unfettered practice. (2) Just weeks after the events of 11 September, the Federal government, led by the Liberal Prime Minister John Howard, proposed dramatic changes to Australia's security legislation in order to combat a "new level of threat" of terrorism. These changes, some of which quickly passed into law, are the most extensive since the establishment of the Australian Security Intelligence Organization (ASIO) itself in 1949. The new laws however are not only unprecedented, they are dangerous; they immensely expand executive power, imperil the rule of Law, offend established political and civil rights, compromise the separation of powers, and weaken established judicial procedures. (3) As such, these contemporary counter-terrorism developments represent a most significant threat to the proper relations between the arms of government, in particular between the executive and the judiciary, in a way not seen since Robert Menzies' several failed attempts to pass the Communist Party Dissolution Bill in 1950.

Briefly, the government's initial proposals in relation to counter-terrorism security developments were two-fold, involving the expansion of ASIO's existing powers together with the introduction of new laws to combat terrorism. The government proposed, firstly, to grant ASIO the power to detain anyone, even those not suspected of any offence let alone any terrorist activity, and including children, for up to forty-eight hours (renewable indefinitely on a rolling basis), for interrogation incommunicado and without access to legal representation. Furthermore, this detention would incorporate the removal of the right to remain silent, such that refusal to answer any questions put during detention (in the absence of legal representation) would carry a maximum penalty of five years imprisonment.

Secondly, the government proposed the creation of new categories of terrorist offences, drawing on the British Terrorism Act 2000. Thirdly, the government issued by means of regulation a list of deemed terrorist organisations from which finances and property were to be seized. Finally, and this was not revealed until the proposed legislation was actually presented to Parliament in March 2002, the government outlined extensive and unprecedented powers for the Attorney-General or any other delegated minister to proscribe or ban, by declaration and without trial, political organisations which the minister alone considers a danger to security. (4) This process of executive proscription would then create derivative offences such that membership of and support for such "declared" organisations would be rendered a criminal offence.

Yet, despite the severity and the significance of these developments, they remain almost entirely unremarked upon by any media. And despite the herculean efforts of the many who made submissions to government on the proposed laws, critical voices have been largely unheard. Even the self-proclaimed arbiters of "investigative journalism" at the Age and the Sydney Morning Herald remain strangely silent, except that is where these new laws might touch them, as journalists. (5) How is it possible, firstly, that a government could propose a package of legislation which included the proposition that children be held in detention without charge and without access to a lawyer, indefinitely, and which also included the contentious and dangerous power of executive proscription and the consequent criminalisation of continued "support" for such organisations? And how is it possible, secondly, that in the face of these extraordinary proposals, barely a journalistic murmur has been heard?

What this silence highlights is the unquestioning acceptance in the aftermath of 11 September of the doctrine of the inevitability and necessity of national security imperatives. …