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Anti-terrorism laws - links update #3

How Democracies Fight Terrorism
by Malcolm Fraser
Stephen Murray-Smith Memorial Lecture
State Library of Victoria, 19 October 2005
FULL SPEECH - http://margokingston.typepad.com/harry_version_2/webdiary_community/MalcolmFraserlecture.htm

War of words over shoot-to-kill
The Australian, Brad Norington and Samantha Maiden, October 21, 2005
-POLICE can already use lethal force under the federal Government's Crimes Act to protect lives when making arrests for an offence. - http://www.theaustralian.news.com.au/common/story_page/0,5744,16986978%255E2702,00.html

Follow UK terror laws: Georgiou
The Advertiser, 21oct05
- THE Government's controversial new anti-terror laws need more checks and balances to protect the fundamental rights of Australians, an influential Government backbencher said today. -http://www.theadvertiser.news.com.au/common/story_page/0,5936,16989732%5E1702,00.html

Licence to kill – due process
Crikey - 21 October 2005
- There's more than just the shoot to kill powers in the draft terror laws to be alert and alarmed about. We are being told by politicians that we must trust them and that the changes are needed. This “need” is based on secret evidence provided by government agencies who will be the primary beneficiaries of the increases in power – let alone funding, personnel and other resources – and reduction in accountability the new laws will bring. - http://www.crikey.com.au/articles/2005/10/21-1522-9226.html

Anti-terror laws open to abuse: Brown
Australian Broadcasting Commission - 22 October 2005
Anti-terror laws open to abuse: Brown. Hundreds of people have protested in Melbourne today against the Federal Government's proposed anti-terror laws, demanding the legislation be scrapped. - http://www.abc.net.au/news/newsitems/200510/s1488344.htm

Mum's the word in terrorist purge
SMH 22 October 2005
Even marriage is not sacred under the Federal Government's proposed anti-terrorism laws.

- A parent who is told that their child has been held by the Government under its tough new laws aimed at preventing terrorist attacks faces five years' jail if they tell their partner what has happened. - http://www.smh.com.au/news/national/mums-the-word-in-terrorist-purge/2005/10/21/1129775959888.html

Compromising liberty for safety?
Troppo Armadillo
Peter Kemp has an interesting post at Mark Bahnisch's place, in which he argues that the "preventative detention orders" to be created under the Howard government's proposed new Anti-Terrorism Bill 2005 may be unconstitutional, in that the provisions repose non-judicial functions in federal judicial officers as "personae designatae" (acting in their personal capacities rather than as judges). Peter argues that these functions may be held by the High Court to be incompatible with the fundamental nature of federal judicial power in the manner discussed in cases such as Hilton v Wells, Grollo v Palmer or Wilson v Minister for Aboriginal and Torres Strait Islander Affairs. - http://troppoarmadillo.ubersportingpundit.com/archives/009619.html

COAG and the limits of parliamentary scrutiny
Democratic Audit of Australia, Australian National University (PDF file)
Also available on Webdiary - http://margokingston.typepad.com/harry_version_2/2005/10/managing_interg.html#more
- Linda Botterill examines the role of Council of Australian Governments (COAG) in the wake of the controversy over ACT Chief Minister Jon Stanhope’s publication of the draft Anti-Terrorism Bill. She shows how the issue is a symptom of the way in which decision-making is becoming increasingly centralised through COAG and premiers and chief ministers are committing their governments to action without first exposing policy to parliamentary scrutiny and debate - http://www.apo.org.au/linkboard/results.chtml?filename_num=41086

Multiculturalism and the war on terror
Australian Policy Online
- Multiculturalism is an ally not an enemy, argued Petro Georgiou in this speech to the Castan Centre for Human Rights Law - http://www.apo.org.au/webboard/results.chtml?filename_num=41084

Whistleblowers at risk, says ex-crime crusader
The Sun-Herald, October 23, 2005
-  John Hatton - The man who instigated the Wood Royal Commission into the NSW Police force has cast doubt over the ability of future corruption inquiries to attract key witnesses http://www.smh.com.au/news/national/whistleblowers-at-risk-says-excrime-crusader/2005/10/22/1129775999182.html

FBI expertise sought
The Advertiser, By Tamara McLean, 24oct05
- Officers from the US Federal Bureau of Investigation (FBI) joined a national summit in Sydney to discuss how to best manage the tens of thousands of child abuse cases reported nationally each year. - http://www.theadvertiser.news.com.au/common/story_page/0,5936,17019946%5E1702,00.html

Voters say yes to terror Australis
SMH, October 25, 2005
Opinion Poll with more links - http://www.smh.com.au/news/national/voters-say-yes-to-terror-australis/2005/10/24/1130006061361.html

Former leaders call for debate
SMH, By Michael Pelly, Tony Stephens and Marian Wilkinson, October 25, 2005
- Two former chief justices of the High Court have joined two former prime ministers, Gough Whitlam and Malcolm Fraser, and a former chief justice of the Family Court, Elizabeth Evatt, in expressing concerns about the new counter-terrorism laws and calling for greater public debate on their far-reaching implications. "Laws impairing rights and freedoms cannot be justified unless they are shown to be needed to target an identifiable, present danger to the community," the former chief justice Sir Gerard Brennan said in a statement to the Herald. - http://www.smh.com.au/news/national/former-leaders-call-for-debate/2005/10/24/1130006061370.html

Whitlam laments Labor silence on new laws
SMH, By Tony Stephens, October 25, 2005
- Gough Whitlam, the former prime minister, has attacked the proposed anti-terrorism laws which would allow Australians to be "interned", and then face criminal charges if they spoke to their families or employers about it. - http://www.smh.com.au/news/national/whitlam-laments-labor-silence-on-new-laws/2005/10/24/1130006061400.html

Jews stress need for balanced powers
SMH, By David Marr, October 25, 2005
- The Jewish community has given given qualified support to the Federal Government's counter-terrorism legislation, while calling for effective human rights safeguards. - http://www.smh.com.au/news/national/jews-stress-need-for-balanced-powers/2005/10/24/1130006061409.html

Nobel author sees parallel in terror laws
Australian, Australia -24 October 2005
- NOBEL Prize-winning author JM Coetzee yesterday launched a thinly veiled attack on Australia's proposed anti-terrorism laws, likening the Howard Government's controversial reforms to human rights abuses under apartheid in his native South Africa. - http://www.theaustralian.news.com.au/common/story_page/0,5744,17011315%255E601,00.html

JM Coetzee joins criticism of Australia terror law plan
Citizen - 24 October 2005
- SYDNEY – Nobel Prize-winning author JM Coetzee has likened controversial new anti-terrorism laws proposed by Australia’s government to apartheid-era human rights abuses in his native South Africa, The Australian newspaper reported on Monday. - http://www.citizen.co.za/index/Article/117994.page

Rudd wants time to review terror laws
The Age (subscription), Australia - 24 October 2005
- Shadow foreign minister Kevin Rudd said some civil liberties would inevitably be lost if the Federal Government rushed the new anti-terror laws through ... - http://www.theage.com.au/news/national/rudd-wants-time-to-review-terror-laws/2005/10/24/1130006046751.html

Blogger Views

Australia: Leaked “Anti-Terrorism” Bill details draconian police-state plans
Hazard Watch - http://hzw.swear.cc/91

The Police State
The Dizwell Blog
- I didn't mention it last time, because the pharmacist deserved to be the focus of my displeasure, but I have to say I was none too pleased about the initial behaviour of the police, either. - http://dizwell.bloghi.com/2005/10/24/the-police-state.html

History of South Africa in the apartheid era -...
Pharoz
- The anti-terror laws would create different categories of Australians. An Australia ID Card would have to be introduced to police such a system. - http://pharoz.blogspot.com/2005/10/history-of-south-africa-in-apartheid.html

Iraq

Who’s behind “terror” in Iraq?
Aljazeera.com, UK - 23 October 2005
- "Anyone who has proclaimed violence his method inexorably must choose lying as his principle." - Aleksandr Solzhenitsyn
Bush’s war on Iraq, based on the rational of fighting "terror" seems unraveling. - http://www.aljazeera.com/cgi-bin/news_service/middle_east_full_story.asp?service_id=9910

UK

Research reveals more use of terror powers
ePolitix, UK  - 23 October 2005
The Liberal Democrats have warned that increasing use of the Terrorism Act risks undermining public confidence in the police. - http://www.epolitix.com/EN/News/200510/30151ddb-58bc-4834-8665-34d2c099f4fa.htm

Into The Dark: Confessions of a terror chief
How big mouth Adair talked himself into jail
Sunday Life, UK - 23 October 2005 - He fought to put terrorist killers like Johnny Adair behind bars and was the victim of dirty tricks from sinister elements inside the RUC's Special Branch. Now former top CID detective Johnston Brown has written a gripping account of his career. - http://www.sundaylife.co.uk/news/story.jsp?story=666286

USA

Did Bush exaggerate on 'terror plots against US?'
Sify- 23 October , 2005
- Washington:  President George W Bush had exaggerated the seriousness of 10 foiled al-Qaeda plots against US, though they were far from ready to be executed, US counter-terrorism experts and intelligence officials were quoted as saying on Sunday. - http://sify.com/news/fullstory.php?id=13970282

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re: Anti-terrorism laws - links update #3

Denise, your link to Media Watch relating to sedition and journalism, foresees the truly frightening end-game of Andrew Bolt, Piers Ackerman and possibly Comical Ali being the only propagandists left standing.

re: Anti-terrorism laws - links update #3

Last night on Media Watch the program gave much of its air time to the new laws on sedition. This link goes into the detail of what was gone over
link here
The shock is that sunset clause for this new law

re: Anti-terrorism laws - links update #3

More brilliance from Pryor (on the ALP's response) in the Canberra Times here.

re: Anti-terrorism laws - links update #3

Mercifully, Lateline viewers finally got to hear some GENUINE content, in the form of two Law academics; Williams and Rothwell, concerning unforseen legal problems and implications first revealed by the Queeensland Solicitor-General, concerning these detestable bills.

We see yet more evidence as to why the bills are being pushed through with such indecent haste, undercover of Melbourne cup day.

As another Webdiarist of some merit only today inferred, before the "muddled (political) centre" (finally) wakes up.

re: Anti-terrorism laws - links update #3

Thanks for pointing that out Denise.

I have republished the Media Watch transcript with thanks to the ABC for asking such questions.

Intro: An expert legal opinion obtained by Media Watch on the impact of the new Anti-Terrorism Bill says that journalists and the commentators they interview might be caught out by the new laws on sedition.

In last week's show we drew your attention to the new sedition offences, as proposed in the leaked draft of the government's Anti Terrorist bill, which is still on our website.

Dictionaries define sedition as conduct or language inciting rebellion against the government. As a criminal offence it has a long and dishonourable history as a means of shutting down political dissent, back in the Cold War and before.

Our concern is how the new sedition offences might criminalise the expression, reporting and publication of the range of opinions in our society.

Read Schedule 7 of the Draft Bill here

The Attorney General's office had sent us this:

  • Will this offence prevent journalists from reporting on terrorist activities?
  • These offences are not designed to prevent journalists from reporting in good faith.

— Question and Answer brief from the Attorney General's Office
Read the Talking Points on Sedition in full here

But there's nothing in the good faith provisions that explicitly refers to the media.

So rather than just rely on the Attorney General's good faith, we sought senior counsels' legal advice. They confirmed we were right to be worried.

The Bill does not do anything to provide that assurance … In terms of any possible defences for acts done in good faith, it seems to us that they have relatively limited operation to media publications of "seditious" opinions.
— Senior Counsel advice to Media Watch, pg 19
Read the legal advice provided to Media Watch on this issue in full here

So, how might the media find itself in trouble? Let's look at some specific examples.

This is journalist John Pilger speaking on the ABC's Lateline programme last year, about the insurgents in Iraq:

John Pilger: ...we've always depended on resistances to get rid of occupiers, to get rid of invaders.

And what we have in Iraq now is I suppose the equivalent of a kind of Vichy Government being set up. And a resistance is always atrocious, it's always bloody. It always involves terrorism.

You can imagine if Australia was occupied by the Japanese during the Second World War the kind of resistance there would have been, and so on. We've seen that all over the world.Now, I think the situation in Iraq is so dire that unless the United States is defeated there that we're likely to see an attack on Iran, we're likely to see an attack on North Korea and all the way down the road it could be even an attack on China within a decade, so I think what happens in Iraq now is incredibly important.

Tony Jones: You mean defeated militarily?

John Pilger: Yes. Tony

Jones: Can you approve in that context the killing of American, British or Australian troops who are in the occupying forces?

John Pilger: Well yes, they're legitimate targets. They're illegally occupying a country. And I would have thought from an Iraqi's point of view they are legitimate targets. They have to be, sure.
— Lateline, ABC TV, 10 March 2004

Pilger’s comments caused an uproar at the time. Foreign Minister Downer described them as "dangerous".

Pilger Should Say Sorry

John Pilger has plumbed new depths with his distasteful and dangerous comments about Iraq.

He should immediately apologise to his fellow Australians, especially the relatives and friends of our armed services personnel serving in Iraq.
www.foreignminister.gov.au/releases/2004/fa036_04.html

Many Australians would probably agree with Alexander Downer. But do we think Pilger should be charged with sedition for comments like those?

Our legal advice is that he could be found guilty under s80.2 of the Draft Bill.

In our view it would be open to construe Pilger’s words as urging or inviting any person to engage in the conduct of the forceful elimination of Australian troops and their defeat in Iraq. There would certainly be an arguable case sufficient to place the evidence and
surrounding circumstances before a jury.
— Senior Counsel advice to Media Watch, pg 16

The penalty remember is a possible 7 years in jail. Now you may not be a Pilger fan, but would you really want to silence him like that?

Our legal advice does not of course say this is certain, but the breadth and the vagueness of the proposed new offences is part of the danger.

The inevitable consequence of the Bill will be to stifle the making of those statements, or even the reporting or repetition of them by others legitimately involved in public debate on such issues.
— Senior Counsel advice to Media Watch, pg 16

But how could the new laws reach beyond the person who makes the seditious comments, to criminalise the media outlet that puts them to air?

According to our legal advice:

If a journalist or producer of a television programme invited such a commentator onto a program knowing that such comments were likely to be made and directly or indirectly invited those comments by directed questions … the producers of the program … could be equally exposed.
— Senior Counsel advice to Media Watch, pg 19

So in our hypothetical case, Tony Jones and Lateline could be charged.

Now before you say "but no sane jury would convict them for that", check what Sunday Herald Sun columnist Andrew Bolt wrote about Pilger's comments at the time. It wasn't, he said, just Pilger who was the traitor and the enemy in our midst, it was also the ABC, who gave his views a platform.

Traitors in our fight for survival
Andrew Bolt
On Wednesday Pilger appeared on ABC TV’s Lateline to promote his noxious views. This apologist for terrorists - this moral pygmy - is … welcomed into an ABC Studio and promoted by SBS … Not all the enemies of our civilisation are Islamic or foreigners. Many are people we pay to defend our culture, but, we find, betray it instead.
— Sunday Herald Sun, 14 March 2004

We could of course have chosen other examples. Like this snippet from the SBS Insight program, which features the radical Melbourne Cleric, Sheikh Omran:

Reporter: Is it a good Muslim's duty to go and fight the coalition forces for jihad in Iraq at the moment?
Sheikh Mohammed Omran: I would say yes.
— SBS TV, Insight, 30 October 2003

Our advice is that Omran's comments would be likely to be found seditious as "urging" assistance to the enemy.

There is a high likelihood that clause 80.2(8) has application ... the suggestion that it is indeed one’s duty might well be capable of satisfying the requirement of urging in the proposed amendments. — Senior Counsel advice to Media Watch, pg 16

Now while we have no truck with what Sheikh Omran is saying, we do take the view that's it better that we know what he's thinking and saying, rather than driving views like his underground. Or alternatively making him a criminal martyr. Our advice is that SBS's liability would depend on the context in which Omran's comments were broadcast.

Far more vulnerable to prosecution will be media outlets like Islamic web sites.

It would be easy to see how opinion or comment by others (published, for example, on a Muslim or other ethnic media resource) could be seen to be endorsing "seditious" opinion by its mere publication. — Senior Counsel advice to Media Watch, pg 18

We do of course believe it's crucial that we have laws that criminalise the incitement of violence and terrorism. We have them already. There's also a case that the government is right, that the old laws of sedition are out of date.

But it's crucial that laws which inhibit the right to free speech should be carefully drafted and much debated, or they'll do more harm than good, especially as according to the Bill there's no sunset clause on these new offences.

You can read the full legal opinion that we commissioned on our web site

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