New anti-terror laws and the Muslim community : Melbourne Indymedia

On 8 September the Prime Minister introduced a 12-point plan outlining new anti-terror laws in a press release. Two weeks later he went to the Council of Australian Governments meeting with the proposals. They approved the measures by and large.

However, until last Friday (14 October) the public had not seen the laws. This all changed when Jon Stanhope, the Chief Minister for the ACT, leaked draft anti-terror laws.

Since then, leading legal experts, academics, politicians and civil rights groups, including AMCRAN, have been carefully analysing the legislation.

It is now clear that there are serious human rights concerns with the draft legislation, that it is open to abuse in its application and that it does not carry the safeguards that the Prime Minister promised.

In this e-mail we will outline the new anti-terror laws as drafted and explain some of the practical implications of the new laws, with an emphasis on the impact on the Muslim community. We will also look at what you can do about these laws.

The information in this e-mail is based on the draft legislation released by Mr Jon Stanhope on 14 October 2005 (available here:
http://www.chiefminister.act.gov.au/docs/B05PG201_v281.pdf).
The Government has already indicated that further changes will be made.

-------------- CONTROL ORDERS --------------

Control orders allow a person to be put under house arrest, to be forced to wear a tracking device, to be stopped from using phones or internet, or a number of other measures. Violating a control order carries a 5year penalty, even if unintentionally. Control orders can last for up to a year, or 3 months if you are between 16 and 18. But the new legislation specifically allows for "rolling" control orders; i.e., one control order finishes, and the next one begins. This means that it is possible that someone could have control orders apply to them for the term of their natural life; with control orders issued year after year after year.

The judge can make control orders if the order would substantially assist in preventing a terrorist act; or if the person has provided training to, or received training from, a banned terror organisation.

When control orders are issued, the judge doesn't have to meet the usual standards of "beyond reasonable doubt" for criminal charges. It is a "balance of probabilities" test; in other words, the judge only has to believe it is more likely than not that the person meets the above criteria. Hence control orders can be seen as a "back door" to imprisoning someone if you don't have enough evidence to charge them with a normal offence.

What's more, it is a "guilty until proven innocent" approach. A police officer, with the Attorney General's permission, goes to a judge and requests a control order. The subject of the order is then taken into custody. Only once they are in custody can they apply for the order to be revoked, with the limitations of the control order imposed on them (for example, if you can't use the phone and you can't leave home, trying to contact a lawyer might be a little difficult).

Muslim community impact: Because it's a "balance of probabilities" test, rather than "beyond reasonable doubt" test, and because the subject of the order isn't even there at the time the decision is made there is the potential for stereotypes and racial profiling. This could lead to many innocent people being imprisoned.

Also, the "training with a terrorist organisation" clause is retrospective, so it would apply to people who might have -- many years ago -- worked with Hamas or Lashkar-e-Taiba, before they were outlawed and before September 11. There is already a crime for "training with a terrorist organisation", but this seems to be a backdoor way to limit the freedoms of people who can't be found guilty of a crime.

------------PREVENTATIVE DETENTION --------------

The police can get a preventative detention order to hold a person for up to 24 hours. This initial preventative detention order can be issued by the Federal Police alone without judicial approval. This can then be extended later to up to 48 hours. It can only be applied if police think there is a terrorist attack likely in the next 14 days, or there was a terrorist attack in the last 28 days. It is planned that the states will introduce legislation for the preventative detention to be extended for an additional 12 days.

When detained, you can talk to a lawyer, but only if they are security cleared; and all your conversations are monitored. If you want to talk to your lawyer in Arabic, then there has to be a translator there so the police can hear what you are saying. You can call your family, but you can only tell them that you are ok, and that you are not contactable -- if you say any more, you can go to prison for 5 years.

Once you are held under preventative detention, there is no provision for review of the decision.

Muslim community impact: It is possible that in the aftermath of a terrorist attack, many Muslims will be arrested to "preserve evidence", while the police try to work out what is going on and apply a "better safe than sorry" approach to detaining people. Indeed, in the aftermath of September 11, at least 70 people (all but one Muslim) were detained using the "material witness" laws in the US, the effect of which is similar to preventative detention. This is the most conservative estimate, because of secrecy, we don't how many were detained, but some estimates are as high as 1200.

---------RANDOM STOP AND SEARCH POWERS ---------

Police can stop you, ask you your name, address, proof of who you are, why you are somewhere and can search you, your vehicle or anything under your control; if they think that you "might have just committed, might be committing, or might be about to commit a terrorist act." If the police find something that they think can be used as part of a terrorist act, they can take it from you.

In addition, the Attorney General can declare an area (there is no limit on the size, could be "the Opera House", or could be "Lakemba") to be a "security zone" for up to 28 days. This declaration of a security zone, on the grounds of "preventing a terrorist act occurring; or in responding to a terrorist act that has occurred," means police don't have to have suspicion, they can just search everyone.

Muslim community impact: This opens a huge door for racial profiling -- it is more likely that Muslims will be searched. Furthermore, it may cause community backlash against Muslims as people blame Muslims for being subject to these measures. There is also a particular issue for women who wear hijaab or niqaab who might be requested to remove their hijaab as part of a search. There is no requirement that the search be conducted in private.

-------INCITEMENT, SEDITION AND "ADVOCATING" TERRORISM----

There are a number of complex measures relating to incitement and sedition. This would limit people's ability to speak openly about any armed conflict in the world, if it includes Australia or Australia's allies. For example, if a person said that "Iraqis have the right to resist the occupation of Iraq by Western occupiers," this statement could be considered seditious and would carry a sentence of up to 7 years.

Furthermore an organisation that adopted a stance such as the above, would be considered to be "advocating terrorism". Advocating terrorism is defined as „praising the doing of a terrorist act‰, „directly or indirectly counseling or urging the doing of a terrorist act, or directly or indirectly providing instructions on the doing of a terrorist act‰.

If that is the case, the organisation can be proscribed, which carries with it many offences. For example, being an informal member of such an organisation would carry a sentence of 10 years.

Muslim community impact: Muslims often express solidarity with the Muslim brothers and sisters elsewhere in the world, in places such as Iraq, Kashmir, Afghanistan and Palestine, and want their brothers and sisters to be free. In some cases, they express the point of view that these people have the right to use violence as a means of achieving their goals, just as the Australian Government advocated the use of violence to protect itself from weapons of mass destruction from Saddam Hussein. Such statements would now possibly illegal under these proposed laws.

------- CHARITY -------

The new provisions for financing of a terrorist organisation mean that many innocent people trying to support worthwhile causes could end up in prison for up to 15 years. Under the new measures, if someone asks you for help collecting charity for a cause and you help them, you have to check they are not using it for terrorist causes. For example, X asks you to help him raise money for victims of an earthquake in Pakistan. You help X to raise funds, but X then gives the funds to an organisation in Pakistan that as well as helping with the earthquake, also engages in activities the government thinks are illegal. You are now guilty of a crime that could find you in prison for 15 years.

Muslim community impact: There is the serious potential for innocent people with a sincere intention to help others will end up in prison for having done no wrong except for having taken someone's word. Furthermore, existing anti-terror laws have seen donations to charities in Australia decrease. These laws would reduce charity even more, and would create feelings of ill-will and suspicion among the community.

-------------- OTHER MEASURES --------------

Other measures in the anti-terror laws give police extensive powers to ask you to produce personal and private documents such as financial records and to find out about your travel patterns. Safeguards that ASIO have to meet when tapping phone calls and monitoring mail have also been weakened.

---------------- WHAT YOU CAN DO ----------------

These laws are likely to be introduced into Federal Parliament on 31 October. It is expected that the Senate will only have one week to scrutinise the draft laws by 8 November 2005. There is only very little time.

AMCRAN is working with many civil rights groups and also members of both political parties to prevent this legislation from going through. We are preparing to send out further action alerts closer to the date, so please keep an eye out. To keep up-to-date, subscribe to AMCRAN-news@amcran.org. You can do this by visiting:
http://www.amcran.org/index.php?id=30&Itemid=52

You can also write to your state premier, your state Attorney-General, to the Prime Minister, to the Attorney-General, and to your local Member of Parliament. Some parts of the laws require States to enact supporting legislation to the Federal law, so it is worth writing to both.

Arch Bevis Shadow Minister for Homeland Security Parliament House, Canberra Fax: (02) 6277 8534 Arch.Bevis.MP@aph.gov.au

For those in New South Wales: Morris Iemma Premier of New South Wales Fax: 02 9228 3934 http://www.nsw.gov.au">thepremier@http://www.nsw.gov.au>

Bob Debus NSW Attorney General Fax (02) 9228 3166 bob.debus@debus.minister.nsw.gov.au

For those in Victoria: Steve Bracks Premier of Victoria Fax: (03) 9397 7227 steve.bracks@parliament.vic.gov.au

Rob Hulls Vic Attorney General Fax: (03) 9379 4434 rob.hulls@parliament.vic.gov.au

For those in Canberra: Jon Stanhope Chief Minister and Attorney-General
Fax: (02) 62050433 stanhope@act.gov.au

---------------FURTHER INFORMATION -------

A coalition of lawyers, academics, policy workers and civil rights groups have written to the State Premiers and Attorneys-General outlining the serious discrepancies between what was promised at the COAG meeting and the draft legislation. You can view a copy of the letter here:

http://www.amcran.org/images/stories/ChiefMinLetter.pdf

An earlier report called "Laws for Insecurity? A Report on the Federal Government's Proposed Counter-Terrorism Measures" detailing various concerns regarding the Federal Government‚s proposals can be viewed from the AMCRAN website http://amcran.org. It highlights the lack of justification for the laws. Among other concerns emphasised are the substantial departures from key principles of a liberal democracy, the constitutional problems, and the lack of safeguards.

If you have any questions please email us at amcran@amcran.org.