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Anti-terrorism laws - links update #6

Read all about it - soon it will be a crime
SMH - 28 October 2005
Raided, but you couldn't read about it
The Age October 28, 2005


Bilal Daye and ASIO director-general Paul O'Sullivan have got at least one thing in common - they both went to school at Randwick's Marcellin college.

But for that footnote in their CVs, there is little to compare the two men. One is the head of Australia's domestic spy agency, the other was raided twice by federal authorities, suspected of being a terrorist. On Tuesday, Mr Daye will take Mr O'Sullivan and the Commonwealth Government to the District Court, seeking damages of up to $750,000 for a bungled swoop by ASIO agents and heavily armed police on his Mascot home.

It is a story that anyone interested in the subject should read now. Under the proposed anti-terrorism laws stories like Mr Daye's could not be told.

For Mr Daye, it is an opportunity to seek redress for an incident that he says badly traumatised himself, his family and sullied his reputation in the community. It is also a cautionary tale about how intelligence on terrorism suspects can be wrong, and how security authorities can make the most elementary mistakes.

By coincidence, the case will be heard on the day the Federal Government had slated to introduce legislation for new anti-terrorism measures, including control orders and preventive detention based only on intelligence, as well as the secrecy provisions which could ban such stories being reported.

Mr Daye's home was raided weeks after the September 11 attack of 2001 while he was in bed with his wife, Fatma, who had arrived in Australia from Lebanon only four days earlier.

As he scrambled to get dressed, Mr Daye heard agents demand he open his bedroom door or "we're going to blow it off", according to his statement of claim. When he came out, there were guns pointed at his head. He was told to join other family members in the living room, kneel down and turn around.

His wife was refused permission to get dressed in the modest fashion that is the tradition for Muslim women in the presence of strangers, Mr Daye claims. "I thought it was a joke at first," he told the Herald. "I thought it was a dream. It couldn't be real. It turned out is was real and a nightmare."

As family members cowered and complained, an ASIO "technical team" began to film the premises and take photographs.

According to an account by the then Inspector-General of Intelligence and Security, Bill Blick, the senior ASIO officer then realised he had made a "serious" error. He had the wrong address on the search and seizure warrant. That should have been patently obvious because ASIO and police had earlier gone to the actual address on the warrant - Mr Daye's father's grocery shop - about 100 metres down the road. ... more


Proposed counter-terrorism laws go too far: survey
ABC Online, Australia -10 hours ago
TONY JONES: During this week of intense debate over the Government's proposed anti-terror laws, Lateline's Margot O'Neill has conducted an informal survey survey of 25 of Australia's leading security analysts - http://www.abc.net.au/lateline/content/2005/s1492436.htm

Lateline Survey Of Australian Security Experts
ABC Online, Australia -10 hours ago

We asked 25 experts with experience in either intelligence, counter-terrorism or security policy to respond to the following questions about the federal government's proposed anti-terror laws. Their responses were given on the basis that the final version of the laws has not been announced. They were given the choice of answering YES, NO or UNCLEAR and were able to state a qualification.

The questions were:

Question 1: Do you think the proposed new anti-terror laws are proportionate to the terrorist threat to Australia?

Question 2: Do you think the proposed new anti-terror laws will help deter and prevent prevent terrorism inside Australia?


Cracks in terror solidarity
SMH, by David Marr and Marian Wilkinson ,October 28, 2005

The NSW Attorney-General, Bob Debus, has publicly questioned the adequacy of the safeguards in Howard Government's anti-terrorism bill.

In remarks that are at odds with the Premier, Morris Iemma's determined support for the legislation


Terrorism laws: states may prompt hold-up
SMH - 27 October 2005
The federal government will almost certainly have to delay introducing its counter-terrorism laws, as state and territory leaders demand more time to look over the controversial measures. - http://www.smh.com.au/news/national/terrorism-laws-states-may-prompt-holdup/2005/10/27/1130367978654.html

Essential liberties are lost in imitation
SMH - 27 October 2005

Without a bill of rights, Australia lacks the safeguards that underpin Britain's stand on terrorism, writes George Williams.

After the London bombings in July, it comes as no surprise that Britain, like Australia, is in the midst of debate about new terrorism laws. These debates cover the same ground because the Australian law is based largely on British precedents. Indeed, John Howard has sought to justify our new law on the basis that it represents "best practice" from overseas.


NSW Law Society calls for counter-terrorism boycott
ABC Online, Australia - 27 October 2005
ELEANOR HALL: As the nation's leaders continue today to discuss how to overcome the potential constitutional problems with the Federal Government's proposed counter-terrorism legislation, the Law Society of New South Wales has added to the controversy by calling on judges to boycott parts of the planned laws. - http://www.abc.net.au/worldtoday/content/2005/s1491917.htm

Lawyers ask for terror bill boycott
Australian, Australia - 27 October 2005
THE NSW Law Society has called on judges to boycott parts of the planned terror legislation over fears they could allow the federal Government to engage in "judge shopping". - http://www.theaustralian.news.com.au/common/story_page/0,5744,17048814%255E2702,00.html

Terror laws give judges option: lawyers
Sydney Morning Herald (subscription), Australia -25 October 2005
The federal government's new anti-terrorism laws would effectively give judges a conscience vote on whether tough new powers breached human rights, the Law Society of NSW says. Under the laws, to go to parliament on Tuesday, a federal judge or magistrate would issue orders to detain terror suspects for up to 14 days or impose control orders of up to 12 months. http://www.smh.com.au/news/National/Terror-laws-give-judges-option-lawyers/2005/10/26/1130291435210.html

UN scandal hits wheat board sales
The Australian, 28 Oct 2005

AUSTRALIAN wheat sales to Iraq were used to illegally funnel about $US200 million from the UN humanitarian oil-for-food program to prop up Saddam Hussein's murderous regime.

Farmers last night expressed fury that their grain had been used in illicit deals that could still be funding the bloody insurgency in Iraq.

And the Howard Government was bracing itself for an explosive UN report, which identifies the AWB as one of 3000 companies involved in the corruption scandal that siphoned $US12.8 billion to Saddam over the seven years the program operated.


US Conference offers fresh and compelling new views on terrorism as nation's partisans sleep .
Radical Middle Newsletter, 15 Sept 2005

Where do you go if you think terrorism is a clear and present danger but can’t buy into the Bush Administration’s way of dealing with it?

For two days last week in Washington DC, there was no question where to go. You got yourself to the gorgeous multi-chandeliered ballroom at the Capital Hilton and took part in the New America Foundation’s “Terrorism, Security and America’s Purpose” conference.

Unlike left-wing conferences of a vaguely similar ilk, this one was NOT organized to rally opposition to the war in Iraq. Or to “rally” anything else. It was rhetoric-free, thoughtful, honest, and (therefore) genuinely inspiring. You couldn’t sit through it without concluding we can build a better world.

Conference: http://www.americaspurpose.org/
Working group papers: http://www.americaspurpose.org/working_group_summaries.pdf

US Official Says Asian Money Laundering Finances Terrorism
Voice of America - 27 Oct 2005
A senior American Treasury Department official says Macau has pledged to combat money laundering, after the United States charged a bank in the former Portuguese colony was working on behalf of North Korea. -http://www.voanews.com/english/2005-10-26-voa30.cfm

Gorbachev blames poverty for terrorism
Norman Transcript, OK - 27 October 2005
Poverty is to blame for terrorism plaguing the globe, former Soviet leader Mikhail Gorbachev said. “The roots of terrorism and extremism are in poverty and backwardness,” Gorbachev said, “even though there are other reasons. But poverty is the main reason for extremism.” He said, “The way to a peaceful world is to fight poverty.” - http://www.normantranscript.com/localnews/local_story_300004845 (if link doesn't work go to www.normantranscript.com, click on local news, then look for the article title in the lower left).


Terrorism bill passes its first test
Politics.co.uk, UK - 27 Oct 2005
The terrorism bill passed its first hurdle in the Commons last night as MPs voted overwhelmingly to give it a second reading. - http://www.politics.co.uk/domestic-policy/terrorism-bill-passes-its-first-test-$15075968.htm


Security Council official on media coverage of terrorism
RIA Novosti, Russia - 28 October 2005

GELENDZHIK (Krasnodar territory), October 27 (RIA Novosti) - The deputy head of the Russian Security Council said Thursday that the media and society played a key role in countering terrorism.

"No state will conquer terrorism if mass media, public organizations, and the people do not help," Valentin Sobolev said in an interview with RIA Novosti during the first international conference, Terrorism and Electronic Media.


Mikhail Gorbachev wants new world vision
United Press International - Oct 25, 2005
Mikhail Gorbachev, a Nobel Peace Prize winner and the last leader of the Soviet Union, is calling for a new era of world cooperation on major issues. Gorbachev, who heads a foundation in Russia, said only global cooperation can tackle international problems such as terrorism, poverty and saving the fragile environment. "No country alone can cope with these problems," the ex-Soviet leader told an audience of 8,000 during a 40-minute speech Monday night at Miami University of Ohio. - http://www.upi.com/NewsTrack/view.php?StoryID=20051025-014402-6899r

Gorbachev blasts world politics - Former Soviet Union leader speaks on US global role
Daily O'Collegian, OK - 27 October 2005
The last Soviet president told a crowded Kerr Activities Center that the United States has a rightful claim to international leadership but not to being a global dictator or policeman. http://www.ocolly.com/new_ocollycom/new_site/read_story.php?a_id=28311

ACT calls for terror-law deadline to be abandoned in light of new Constitutional advice.

Media Release
26 October 2005

ACT Chief Minister Jon Stanhope has called on the Prime Minister to delay the introduction into the Federal Parliament of the Anti-Terrorism Bill, saying he believed it was now not possible to finalise the draft within the timeframe set down by the Prime Minister.

“Today I have received constitutional advice from Stephen Gageler, SC, that there is a substantial prospect that the changes to the Criminal Code proposed by the Federal Government would be held to be invalid by the High Court,” Mr Stanhope said today. “This advice builds on a growing body of evidence in recent days suggesting there are serious constitutional concerns with the draft and serious deficiencies in areas such as judicial review on the merits, the proposed extension to the laws of sedition, and other crucial human-rights issues.

“On the basis of the analyses I have received I am now persuaded that the drafted laws do not come close to meeting the assurance I received from the Prime Minister on September 27 that the laws would comply with Australia’s obligations under the International Covenant on Civil and Political Rights. I will insist on that assurance being met in full and I believe that to make the laws compatible will require a significant re-draft, something I am not confident can be achieved by next week.

“When one adds to the mix a serious prospect of constitutional challenge, it seems clear that the Prime Minister ought to do the right thing and pull back from the legislative fast-track he has imposed on the States and Territories. It would be irresponsible and irrational to proceed when questions of such seriousness are being posed daily.”

“While I appreciate the Prime Minister’s desire to have the new laws enacted as soon as possible, I believe that to ram through laws where there is such a high level of legal uncertainty would be counterproductive in the long run.

“The Christmas deadline for the legislation is an essentially artificial deadline, set by the Commonwealth. Laws of this seriousness deserve the most robust scrutiny imaginable, and the most sober reflection by legislators. I call on the Prime Minister to abandon his Friday deadline for sign-off by the States and Territories and to delay his plan to introduce the Bill into Federal Parliament next week. To stick to this arbitrary timeline could prove disastrous for those charged with administering these laws in an atmosphere of uncertainty.

“Barely a day now passes without another piece of expert advice emerging to cast doubts on one or more aspects of this draft legislation. Surely the Prime Minister cannot persist with his unrealistic deadline in the face of such growing concern.”

An electronic copy of Stephen Gageler’s advice can be found at  www.chiefminister.act.gov.au

What's New from the ACT Chief Minister's office

Lasry-Eastman Advice:

We are briefed by the ACT Government Solicitor who acts for the Acting Chief Executive of the Department of Justice and Community Safety. We are asked to advise on the following question:

If the Anti-Terrorism Bill 2005 (Cth) was ACT legislation, please advise whether the Attorney-General may present a statement under section 37(3) of the ACT Human Rights Act stating that the bill is consistent with human rights. If not, please advise how the bill is not consistent with human rights.

[ Download PDF 314KB ]

Constitutional advice from Stephen Gagelar, SC


The fundamental difficulty with each of the proposed Div 104 and the proposed Div 105 stems from the separation by Ch III of the Constitution of the "judicial power of the Commonwealth" conferred respectively by CH 1 of the Constitution which includes (s 51(xxxvii) and CH II of the Constitution and to a lesser, but not insignificant extent, also from the power conferred by s 122 of the Constitution (which is within Ch IV) which is allowing for the Commonwealth Parliament to makes laws for the government of a Territory allows it to make provision for the conferral on organs of government if "judicial power of the Territory".

The relevant effect of that separation of powers is that the Commonwealth Parliament cannot:

  1. confer any part of the "judicial power of the Commonwealth" on any person or body that is not a Ch III "court";
  2. Require or authorise a Ch III court to:
    (a) exercise something other than "the judicial power of the Commonwealth"; or
    (b) exercise the "judicial power of the Commonwealth" in a manner which is not consistent with the essential character of a court or with the nature of judicial power; or
  3. require or authorise any judge of a Ch III court to perform a non-judicial function of such a nature or in such a manner as to undermine the institutional integrity of the court of which he or she is a member.

The proposed Div 104 and the proposed Div 105 in various ways call into question each of those constitutional limitations.

[ Download PDF 794KB ]

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re: Anti-terrorism laws - links update #6

And this from HREOC:

Human rights not protected by counter-terror laws: HREOC
The Human Rights and Equal Opportunities Commission (HREOC) president believes the Federal Government's counter-terrorism bill needs to be reconsidered because it does not have the same protections available under international human rights laws. [...]

re: Anti-terrorism laws - links update #6

Govt amends counter-terror laws, Stanhope says

From ABC Online 28 Oct 2005 .pm [my emphasis] - http://www.abc.net.au/news/newsitems/200510/s1493364.htm

ACT Chief Minister Jon Stanhope says the final draft of the Federal Government's counter-terrorism legislation contains a number of significant amendments, particularly in relation to control orders and preventative detention.

The Federal Attorney-General's office has announced the counter-terrorism legislation will now not be introduced to Parliament on Melbourne Cup day.


Legal discussion is continuing over the constitutionality of the laws.

With Wednesday set aside for debate on the Workplace Relations Bill, the counter-terrorism measures are falling further back in the field.

A spokesman for the Attorney-General says that a new date to table the counter-terrorism bill has not yet been set.

re: Anti-terrorism laws - links update #6

Each of these successive Anti-terrorism updates highlights more and more a fiasco that's a bigger cock-up than a bull elephant on it's back in springtime.

Does anyone have an opinion on whether the Governor General has any leverage in situations like this?

Does he at least have the authority to instruct the silly buggers to back-off for a while and take aspirin?

re: Anti-terrorism laws - links update #6

Many thanks, WD, for these daily links - reduces my previous long trawling for related articles to a single mouse-click. Much appreciated!

There are so many "devil's details" but what of big picture - the definition of terrorism?

As well as Australia following on the shirt-tails of the UK, many other countries (as shown above) are proposing counter-terrorist laws. But how many define the terrorism that these new laws are supposed to prevent? Why is there such lack of consensus or willingness to spell it out?

Perhaps by cunningly leaving a clear definition out of any 'new-and-improved' Laws, they can then be applied to cover a myriad of opportunities for population control?

Or perhaps because some ‘experts’ define terrorism as two types – state terrorism and private terrorism?

For example, the definition of terrorism by Noam Chomsky in his lecture September 11th and its Aftermath: Where is the World Heading he says that the implementations of foreign policy, both overt and covert, are not new, but repetitions of the strategies of empire-building nations throughout history.

The acts of defiant groups are often the only retaliation available to a less powerful and subjugated peoples. Both, he asserts, are forms of terrorism. In a previous interview with Susan Hansen, Chomsky includes the definition of terrorism as taken from the United States Code:

Terrorism is the calculated threat or use of violence with the aim of intimidating and provoking fear and damage in order to achieve political, religious, ideological and other goals, typically directed against civilian populations.

Under that definition, he concludes, for example, the bombing of Afghanistan is state terrorism, and the attacks of September 11th on America are private terrorism.

(I know Chomsky is a red flag to many, but interestingly he was recently voted as the World's Top Public Intellectual!)

Why do I find it so alarming that in the US Code’s definition I can so easily replace the word “terrorism” with “the Australian Federal Government’s Proposed Anti-Terror Law”?

Aside from the old chestnut “the object of terrorism is to terrify,” what other definitions can be pulled from the fire?

re: Anti-terrorism laws - links update #6

In Crikey on Friday there was this by Christian Kerr which illustrates precisely WHY we need proper safeguards for all laws of the type being proposed:

Would you trust a paper shuffler with your freedom?

“ASIO twice mistakenly advised a phone company that the Attorney-General had endorsed warrants for taps 24 hours before the endorsement had been obtained,” Michelle Grattan reports in The Age.

That's exactly the sort of issue a number of state and federal Liberals are having problems with in the lead up to the introduction of the terror bills. Their mood can be summed up in one of two words – Rau or Solon.

These MPs – influential, experienced MPs, in some cases – aren't just concerned by possible legal defects in the draft legislation. They are worried by the proven track record of incompetence and disregard for people's rights of the pen-pushers who will administer the laws.

Bureaucratic capture, incompetence and blame-shifting – plus populist authoritarianism – is a pretty scary mixture, after all.

Take DIMIA's denial policy. The Vanstone/Ruddock response has been to blame staff and claim no prior knowledge. It's very simple – but the number of scandals and the time frame they have occurred over suggest much wider management failures.

These failures include a lack of an internal audit and review system; case by case regular reviews; the application of a duty of care in all matters relating to detainees; management and review/audit the medical management of detainees (particularly mental health); a beyond reasonable doubt approach to identification research and review and no requirement for detailed reporting to the ministers.

Government members want to talk about this before it's banned by the terror laws, but imagine the possibility: A bungling bureaucrat lost my liberties.

re: Anti-terrorism laws - links update #6

On November 11th 1975 It will be 30 years since the constitutional crisis/ Whitlam dismissal. Food for thought - the COAG agreement and the current state of the Senate will mean one of the potentially most drastic pieces of legislation ever presented, affecting us all, will get through on party lines.

I cannot think of anything other than conscription and the proposed IR changes so likely to divide and damage Australia.

Margo: Hi Barry. Does anyone know if someone has produced fact sheets on the key changes which people could give to friends, pop into letter boxes or hand out at shopping centres? There's the detention and control orders and the wiping away of privacy laws, legal professional privilege and contractual confidentality obligations so AFP officers can compel companies by a mere notice to hand over personal info on people. They can't challenge the ntoice and they can't tell their clients that they've done so on pain of committing a criminal offence. And there's the sedition laws which aim to stop people saying things the government doesn't want them to say. If there's no such thing yet, is anyone with expertise willing to draft up fact sheets for Webdiarists to use to spread the facts to more Australians?

re: Anti-terrorism laws - links update #6

The Queen can disallow laws within 1 year of them being passed (or is it proclaimed). The GG could refuse to sign it and refuse to resign and making Howard ask the queen to dismiss him/her.

re: Anti-terrorism laws - links update #6

Judicial oversight by retired judges? Legislation must be in place before Xmas? Less debate than what the equivalent UK legislation had and which provides the "model" for the Oz version - a joke. There is sadly an increasing abuse of the Parliament by this government. This legislation should be named "Howard's Hubris".

re: Anti-terrorism laws - links update #6

More via Stanhope here. But in particular note:

But he says the changes do not go far enough.

"The Prime Minister said that this would be a judicial process, that there would be judicial oversight of the issuing of control orders and preventative detention orders," he said.

"The draft calls for preventative detention orders to be issued by retired judges - in other words private citizens - in an executive capacity or the president of the Administrative Appeals Tribunal in an administrative capacity.

"They're taking it out of the scope of the courts. It's a clear breach of the COAG [Council of Australian Governments] agreement in relation to the checks and balances that would apply.

"I can't speak for the premiers but that really does raise some serious concerns for me."

Retired judges? Private citizens? Sounds more and more like the wild west. Outrageous. [I have nothing against retired judges, but this takes them out of the proper legal scope.]

re: Anti-terrorism laws - links update #6

Yawn, Yawn – our statist chickens are finally coming home to roost.

On the one side we have the inane and illegal interventionist and mercantilist foreign policy of the neo-conservatives and on the other the interventionist domestic policy of the socialist-democratic left.

One group want’s to invade the world and the other wants to invite it.

Both fairly similar philosophies really, with an agenda that has seen the centralisation of power to the federal government through successive judicial and associated legislative activism brought on by the erosion of our founding English and Australian constitutional heritage.

This increase in the power of politicians, the destruction of our constitution and liberties and their increasingly authoritarian policies is no surprise to those that believe in freedom.

re: Anti-terrorism laws - links update #6

Stuart Lord, I might remind you that those who have done by far the most killing of innocent civilians in Iraq are the US and the Coalition of the Killing that invaded, occupied and plundered Iraq in the first place. I might also remind you that if there were no foreign troops in Iraq there would be no need for foreign Jihadi fighters to go to Iraq to help the Iraqi insurgents defend themselves against the invaders and their puppet collaborators.

I also re-link to this article in SMH on 27 October 2005 which clearly demonstrates that the US and its allies are not welcome in Iraq.

I should also mention that no insurgency could survive, let alone grow, without the support of the populace that it operates in. And in this case it’s throughout non-Kurdish Iraq.

The quicker the US and its allies leave Iraq and the Middle East the better for the world.

re: Anti-terrorism laws - links update #6

Damian Lataan, I just love how you pick on the 'covert soldiers possibly acting in Syria' without even mentioning the reason why they would be there - killing foreign insurgents before they reach Iraq and start killing people (mostly Iraqis, these days).

re: Anti-terrorism laws - links update #6

Last week in my post of 26/10/2005 4:03:14 PM on the ‘Anti-terrorism laws - links update #4’ thread I asked when Howard is going to come clean with the Australian people about what his intentions are with regard to the up-coming war with Iran and/or Syria. Since such action against one state or the other or both states seems increasingly imminent, so the question has increased urgency.

This piecein today’s Australian suggests that Special Forces may be used inside Syria if, indeed, they haven’t been already. Have Australian forces been used or are they likely to be used? If it comes to open conflict between the US and Syria and/or Iran, will Howard commit Australia to these wars as well? If the US decides to act pre-emptively, with or without Israeli help, will Howard commit Australia to such action? When will he tell the Australian people and our Parliament what his intentions are in these matters?

re: Anti-terrorism laws - links update #6

Interesting article on Terrorism and civil rights from Jack M. Balkin, Professor of Constitutional Law at Yale Law School.

"In Giving Up Our Rights, We'd Lose the War"

re: Anti-terrorism laws - links update #6

This morning on my walk I thought about begging either Paul Keating or Malcolm Fraser to restand for the Prime Ministership. Malcolm for either party, Paul just for Labor.

Last night I wondered what www.counterpunch.com was saying about the rise of fascism in Australia. They are saying nothing (except one reference to shoot to kill).

I notice this name on some of their articles - Antony Loewenstein, which looks a bit familar.

I was wondering if some of the articles here should be sent there.

ed Kerri: Hi David, Antony has written for Webdiary and has a blog here.

re: Anti-terrorism laws - links update #6

This today from Abbott (another of Howard's attack dogs) here

Navel gazing indeed. That is a new name for democratic process! Dumb and dumber.

re: Anti-terrorism laws - links update #6

Jon Stanhope on Meet The Press this morning gave the response Beazley should have given - far more measured and appropriate. Nicola Roxon disected the essence of this Bill's inadequacies far better than Beazley could ever hope to do.

My hope is that with Beazley's declared Faith yesterday that he is entertaining the idea of becoming a Trappist Monk.

re: Anti-terrorism laws - links update #6

Oh joy. Beazley has attempted a Johnny backflip and is now saying the proposed laws are not tough enough. See here in Brisbane's Sunday Mail.

What's next? My feeling is Beazley has just announced his retirement through this action. I can only hope the report is wrong.

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