Thursday 30th of November 2023

Precedence In New Australian Terror Laws

 First written as comment to a piece on Margo Kingston's Webdiary, in which Kerri Browne has placed the Australian Parliamentary Library's compendium of information regarding the proposed Australian terror legislatiion.  Click here.


When the Commonwealth Heads Of Government meeting was held in Melbourne (late 70's, I think) an Irish friend of our family operated a milk bar somewhere in Victoria, three hundred or so miles from the Big Smoke.

This man's father had affiliations with the Australian branch of Sinn Fein.

The Federal Police came down from Melbourne to conduct a weapons search, just in case his milk bar was a weapons cache for an armed action in Melbourne.

I raise this situation as it was not that long ago. There were, and are, many Australians and Irish who didn't sympathise with the British. In modern parlance supporters of Irish rebellion would be considered as criminals, and the literature that was circulated interpretable as inciting acts of terrorism.

What happens when somebody empowered by the impending Australian legislation decides that those who supported Irish efforts to reclaim Ulster may be supporting the terrorists attacking Britain? You can be sure that the possibily of IRA backers aiding and abetting Jihadists has been discussed once or twice in Downing Street.

On Easter Sunday last year I had the pleasure of sharing a Guinness with SA's Atternoy General, Mr Atkinson, at Adelaide's Irish Club. The occasion was Australian Aid For Ireland's annual commemoration of the uprising against the British in Easter of 1916. Mick sat in room full of predominantly middle-aged to elderly Irish, listening attentively to this annual litany of celebrating a cultural revolution.

Crossing a fine line of definition, Attorney General Mick would be considered a terrorist sympathiser. I hope his involvement in creating the legislation ensures that he is not part of a future witch-hunt.

When Mr Howard says that Australia's terrorism laws are a result of the London bombings, he is using as a template a society which has had similar laws to those he would implement for the last thirty years.

See if you find any of this language familiar:


2.7 In the language of the then Home Secretary introducing the PTA legislation in 1974, the Government believes that there exists now a clear and present terrorist threat to the UK from a number of fronts and that a terrorist threat is likely to continue to exist for the foreseeable future even when a lasting peace in Northern Ireland is achieved.

2.8 Having come to this conclusion, the Government believes that new counter-terrorist legislation is needed to take account of the changes in the nature of terrorism and the methods deployed. It also believes that this new legislation should be permanent - as is the case with the vast majority of criminal law. The annual renewal of current temporary anti-terrorist legislation, whilst useful in underlining the exceptional nature of the powers and the connection between their use and the prevailing terrorist threat, and providing an opportunity for annual scrutiny of the use of the powers, does not reflect the current reality that such powers are likely to be needed for the foreseeable future.

This consultation paper on Legislation Against Terrorism was prepared for the U.K. parliament in 1998, and shows great similarity to what the Australian Government proposes, arguably to a level of near-plagiarism.

The one crucial difference has been discussed before. The U.K. has been an occupying force in many countries for many hundreds of years.

Shouldn't we be "writing our own book" in this situation, instead of (as it would seem) utilising the timing of events to initiate a pre-prepared plan?


creating a terrorist state .....

‘The Law Council says that there is an escalating groundswell of opinion in the international legal profession against draconian anti-terror laws - there is a rapidly growing international view that more faith needs to be shown in our traditional legal protections.

Speaking at a national legal conference in Canberra today, Law Council President John North said, "Any change that affects our right to live in peace and to be free from arbitrary arrest and detention must be subject to the utmost scrutiny. Do these laws actually make us safe or just makes us feel safer? They are arming our police and intelligence services with powers that history shows will likely lead to abuse and misuse."

From recent international conferences, it has become overwhelmingly clear that the erosion of human rights is of international concern. "At recent conferences of the American Bar Association, the International Bar Association, the Commonwealth Lawyers' Association and at last weekend's LawAsia conference, the prevailing theme has been the need for lawyers to act now to halt the march of executive power", Mr North said. 


As former Chief Justice of the High Court, Sir Anthony Mason said last week "In a climate where there is apprehension about security, there is a risk that the importance of protecting individual rights will be sacrificed or underestimated". 


Mr North said, "Australia stands apart as a western liberal democracy without a Charter of Human Rights". The Law Council believes there are many other local human rights concerns such as the treatment of people including many children in immigration detention, the exclusion or restriction of judicial review of administrative decisions, and the failure to advocate for the provision of basic and fair judicial processes in cases where Australian citizens are detained overseas. 


"Some fifty people died in the London bombings notwithstanding control orders and preventative detention laws. An innocent young man was shot dead by London police in the aftermath to the bombings. Cornelia Rau was mistakenly imprisoned and Vivian Alvarez was mistakenly deported by agencies of the Australian government. David Hicks and Ahmed Aziz Rafiq remain in foreign custody without the prospect of judicial review. Executive power is deservedly everywhere under the microscope but not least in Australia", Mr North concluded.’ 


International Legal Concern Grows Re Anti-Terror Laws 


‘Law Institute of Victoria Chief Executive Officer, John Cain, said a significant danger for the community was the erosion of fundamental rights and liberties.  


"Aspects of these laws, which expand on ASIO's already extensive powers, offend all notions of basic civil liberties. They also have the potential to be enforced in a discriminatory way against racial and religious minorities who provide easy targets for random police searches and investigations," he said.  


"While the possibility of a terrorist attack can't be ruled out, there is no justification for the introduction of such extreme measures. There is certainly no evidence that the attacks in London would have been prevented if such laws were in effect," Mr Cain said.  


Since 2001 Australia has progressively introduced controversial counter-terrorism measures and this incremental approach has diminished fundamental civil liberties. Mr Cain said the latest counter-terrorism package reflects measures that could be expected during a state of emergency.  


"If Prime Minister Howard thinks that the erosion of fundamental civil liberties fits within community expectations then he's seriously out of step. You can't respond like this every time an attack happens in another part of the world," Mr Cain said.  


The LIV believes these new counter-terrorism measures are excessive and do not strike a reasonable balance between the basic civil rights of citizens and the need to be able to avert and prevent terrorist attacks.  


Mr Cain said the current legal framework already provided powers to intelligence organizations and police and that before such additional draconian measures are introduced there must be a clearly demonstrated need.  


The LIV is particularly alarmed at:  


• the general expansion of the state's detention powers, including preventative detention powers  


• the absence of any sunset clause which would require a review and an assessment of the necessity of the laws  


• the lack of detail with regard to legal representation for people detained and the power of the courts to oversee their detention.’  


Law Institute of Victoria Condemns Counter-Terrorism Package

lock-up terrorists, lock-up anyone .....

By Crikey psephologist and philosopher Charles Richardson 

Every now and then, the government tells us that the threat from terrorism is special and unique, and the draconian powers used to fight it will not spill over into other areas of life. Nobody much believes them any more, and a disturbing story in this morning's Australian shows why. 



The federal justice department is supporting a move by the Australian Crime Commission to inflict immediate and indefinite imprisonment on people who refuse to answer its questions. The ACC already has far-reaching coercive powers to pursue investigations, but at least it cannot send people to jail without a proper trial in the Federal Court. Now that limitation could be removed.  


The story says the powers would be "based on contempt of court provisions" (themselves a matter of some concern), but of course the ACC is not a court; it's an arm of the executive, not the judicial power. Separation of powers, however, is an unfashionable doctrine in Canberra, as the "anti-terrorism" legislation has demonstrated. For good measure, the ACC also wants to be able to share any information it gains with the private sector.  


Not only are these powers bad in principle, there's also no evidence that they work. And it's easy to see why not: crime-fighting is harder, not easier, if you start by undermining the rule of law. If we have to throw away the rule book in order to combat organised crime, why bother? We'll just end up with a gangster society in either case.  


American strategy in Vietnam sometimes came down to "we had to destroy the village in order to save it." The justice department's strategy of "we have to destroy a law-governed society in order to save it" makes equally little sense.




from dramatic expression to dramatic licence .....

‘The UK Attorney General was accused of bowing to political pressure last night after it emerged that no police officer will be prosecuted for shooting dead a man armed with a wooden table leg.  


The killing of Harry Stanley, a painter and decorator from east London, raises concern about whether the criminal justice system is capable of holding police officers to account for shooting dead members of the public. In the past 12 years no police officer has been successfully prosecuted for any of the 30 fatalities caused by police marksmen. 


Concern over police officers' accountability for their use of firearms has been heightened by the controversy surrounding the shooting of Jean Charles de Menezes at Stockwell Underground station in London on 22 July. The Brazilian was shot dead after marksmen wrongly suspected he was a suicide bomber.’ 


Responding to criticism of his government’s ‘shoot-to-kill’ proposal, our own little trickie dickie prime meanster said: “I mean shoot to kill is a dramatic expression but it's a complete misnomer for this situation.  


Howard's 'dramatic expression' is actually a misnomer for dramatic licence as far as UK Police are concerned.  


Shot Dead By Police = 30 - Officers Convicted = 0


prime meanster contemptuous of democracy .....

‘Australian Capital Territory Chief Minister Jon Stanhope says retaliatory action has been taken by the Federal Government over his decision last week to post the draft counter-terrorism bill on his website.  


Mr Stanhope says he has received an email from Prime Minister John Howard advising of the ACT's exclusion from consultation over the next draft of the bill.’ 


Government Retaliating Over Terror Bill Publication

duh .....

‘Montreal (CP) - The head of Canada's spy agency strongly suggested Thursday the U.S.-led war in Iraq is making the world a less secure place.  


"Diplomacy is not my field, security and intelligence is," CSIS director Jim Judd said at a conference on intelligence studies. "And I think from a security and intelligence perspective, the conflict in Iraq may be creating longer-term problems, not just for Iraq but other jurisdictions as well."  


The head of the Canadian Security Intelligence Service said Iraq is becoming a "kind of a test-bed for new techniques" for Islamic extremists, such as suicide attacks and the use of improvised explosives.’ 


War In Iraq May Be Fuelling Global Insecurity, Canadian Spy Chief Warns

anti-terror laws .....

An event on the proposed anti-terrorism laws, which will be introduced into Parliament on the day of the Melbourne Cup, is being held in Canberra on Thursday 27 October at 6.00PM 


Full details are:  


TERRORISM LAWS FORUM, Thursday 27 Oct, Nat Library of Australia, 6-8pm  


Civil Liberties is holding a Terrorism Laws forum Thursday night, 27 October, from 6-8pm at the National Library of Australia. 


Speakers include 


- Christopher Michaelsen, LLM, an expert on terrorism laws in Europe, Asia and Australia; 


- Asmi Wood, ANU law lecturer and a Muslim, member of the Canberra Islamic Centre at Tuggeranong; and 


- Bill Rowlings, secretary, Civil Liberties Australia (ACT)  


The three speakers will address the meeting for the first 30 minutes. There will be more than an hour for members of the audience to express their own opinions, and ask questions.  


Further information: Kris Klugman Tel: 6288 6137, Email:  




Dr Phil Larkin 

Democratic Audit of Australia

Political Science Program

Research School of Social Sciences

The Australian National University

Canberra ACT 0200

Tel:  +61 2 6125 0696

Fax: +61 2 6125 3051













that old porkie prime meanster again .....

‘A British legal expert says the Federal Government's proposed new anti-terrorism laws offer limited protection against human rights violations, in comparison to UK laws.  


Prime Minister John Howard has acknowledged that the British anti-terrorism laws have influenced what he is proposing for Australia. 


Australian-born human rights barrister Dr Angela Ward has told ABC's Lateline program the key difference in the laws lies in the fact that the UK terrorism legislation is subject to review against its Human Rights Act. 


"That vests judges with powers to review conduct of the authorities that are really much broader than the Australian powers," she said. 


"So what I find most worrying about Mr Howard's assertions that the Australian legislation is just like the UK regime, it really only tells half the story because the UK legislation can not be read in a vacuum."’ 


Anti-Terrorism Laws Lack UK-Style Safeguards

Safeguards To Laws

If this plays out the way it appears it will, the laws will be passed after the Opposition introduces the U.K. counterbalances.  Win-win?

See what a good guy Mr Howard is for not objecting to moving the debate from Melbourne Cup Day? Oh, and we can sort out that shoot-to-kill stuff.


Anyone see Rove last night?  The line of the night was "If I can't stand here and do a crap impression of John Howard to a live audience, the terrorists have won!"

 Hear, hear!

a familiar refrain .....

‘For someone who aspires to the highest functions of the state, he does not seem to us to measure the impact of his words. He is in such turmoil to make it known that he is busy on every front, that he acts, that he doesn't seem to understand the thrust or the reach of his words.  


He's not speaking from the register of the fight against terrorism, but from the register of the puerile desire to exist.  


He wants to seem to be the one who knows everything, and that's called populism.’ 


"Gesticulation and Sleight of Hand"

a new logic .....

from Crikey ….. 

Melbourne terror trial sets a very scary precedent 

Jeff Sparrow, editor of Overland writes: 

For Robert McClelland, the Benbrika case represents Australia's "most successful terror prosecution". 

But that very much depends on what you mean. 

Most media reports imply that the conviction of seven men in Melbourne means that the police prevented terror attacks against targets ranging from the Westgate Bridge to the Grand Final. 

But that’s not what the court found at all. 

After all, it’s an offence under common law to attempt a crime, and has been for hundreds of years. These men were not charged with attempting bombings or murders. They were convicted under John Howard’s anti-terrorist laws. 

Mick Keelty explains: 

The problem with the legislation was that the legislation at the time talked about "the" terrorist act. And in the Benbrika matter there was no definite decision about "the" terrorist act but, in our view, clearly they were planning for "a" terrorist act. So we explained that to the previous government and that was when they recalled the Senate and changed the wording of the Act to "a" terrorist act. 

That seemingly trivial amendment (from "the" to "a") meant that the prosecution didn’t need to prove any involvement in a specific act of terror. Benbrika, for instance, was found guilty of being a member of a terrorist organisation, directing the activities of a terrorist organisation and possessing a thing in connection with preparation for a terrorist act. 

You might conclude that Benbrika and his friends had joined al Qaeda or a similar group, an organisation with defined aims and members. In fact, the terrorist organisation was simply the men themselves. As for the "things" that Benbrika possessed, they weren’t bombs or guns but videos and documents about overseas groups or about terrorism in general. 

That was what the case involved. The men talked about terrorism. They read books about it; they looked at terrorist snuff videos; they discussed the theological ramifications of martyrdom. But they didn’t actually do anything themselves. 

Insofar as specific targets were raised in the trial, most of them came from Izzydeen Atik, the defendant who pleaded guilty. It was Atik who claimed Benbrika wanted to attack the MCG and Crown Casino. But Atik was mentally ill and believed he could talk to birds, and the judge specifically warned the jury that Atik was a conman, liar and a fraud. 

On the police recordings, Benbrika and his friends say lots of nasty things. They discuss martyrdom and revenge killings, and Benbrika says he wants to damage lives and damage property. But it’s all incredibly amorphous. The Herald Sun’s headline about "West Gate Bridge bomb plot", for instance, rests upon a recording of Fadl Sayadi explaining that it might be possible to destroy the bridge if you snorkeled underneath and planted what he described as "thingos" underneath. 

Sayadi didn’t have any "thingos" and neither did any of the other men. The only explosives referred to in the trial belonged to an undercover police officer codenamed SIO39, who invited Benbrika to come with him into the bush to detonate bombs. 

As Keelty says, McClelland’s successful prosecution depended on the new logic embodied in the anti-terrorism legislation, a logic that substantially eroding the traditional insistence that a crime depended on both a guilty intention and a guilty act.Think about it in a different context. Imagine a group of junkies who decide they’d like to sell drugs rather than buy them. They read internet sites about making speed and they talk about the merits of bringing smack in by ship and by plane. If a wiretap picks up their mutterings about commercial quantities of heroin, should the law treat them as if they were already Mr Bigs? 

If drug dealing seems less serious than terrorism, try a different example. In a high school, a group of bullied misfits listen to grindcore, read books about serial killers and talk to each other about shooting their schoolyard tormenters. Say a teacher overhears them. The kids’ profile seems similar to that of Eric Harris and Dylan Klebold. So should they be treated as if they’d already conducted a Columbine massacre? 

School and workplace massacres are just as horrible as terrorist attacks (and probably far more likely). But we’d never apply the logic of the anti-terror laws in those settings. 

It might be hard to muster much sympathy for Benbrika. But if we allow men to spend decades in gaol for acts that they might have committed in the future, we’re establishing a very scary precedent.

meanwhile .....

Terrorism and politics in Australia: an absurd farce

Canberra correspondent Bernard Keane writes:

So a considerable period of Question Time was wasted yesterday in the Opposition’s "pursuit" of Attorney-General Robert McClelland over his comments about the Benbrika terror trial.

It’s pretty funny seeing the Federal Coalition commenting on good process in a terrorism trial. The mob behind the Haneef debacle and its crass -- well actually not so much crass as outright evil -- politicisation doesn’t have a skerrick of credibility on this.

Kevin Andrews wasn’t in the chamber -- he’s in Europe -- but Phillip Ruddock was. His pallor was unblemished by even the faintest blush as the Opposition tried to ping McClelland. Shadow Attorney-General George Brandis wandered over from the Senate and sat in the bleachers behind the Opposition backbench. He didn’t actually do much, but it showed how, you know, serious it all was.

I went to the press conference in question. McClelland might’ve been trying exploit the trial outcome, but he carefully prefaced his remarks to make clear he was not commenting on the defendants about whom the jury had yet to make a finding, only about the verdicts that had already been delivered. Hello? How clear is that? But the trial judge, Bernard Bongiorno, apparently took exception to the comments.

Of course, he would, wouldn’t he. Like all other judges and indeed most of the legal system, Bongiorno continues this 19th century infantilisation of the community, on the basis that criminal justice is incompatible with jurors with minds of their own, who must be rigidly guided in their duties by the priest-like ritualists of the legal system, with no one daring to comment from outside.

Great for protecting the rights of the accused, of course, and great for keeping lawyers and judges in work.

This is, after all, the state where Underbelly was "banned" despite it being two clicks away on that interwebs thing that the youngsters are getting into, or available over the border on DVD. Those pesky zeroes and ones, undermining criminal justice, eh?

Meantime, Greg Sheridan, who has only recently been surgically removed from Alexander Downer, weighed in today to laud our success in the War Against Stuff by talking about a recent speech by some nameless bureaucrat from ASIO. Sheridan -- even more so than Gerard Henderson -- has been the leading spruiker for the National Security State garbage peddled by the Right since 2001.

Central to this has been an assertion that the systematic violation of basic rights -- to which Mohammed Haneef can attest -- is an essential part of our counter-terrorist response, and a refusal to accept the obvious truth that the issue was consistently (and in the end clumsily) exploited by the Howard Government for domestic political purposes.

Sheridan kicks off his piece by telling -- in all seriousness -- the story of how an Iraqi national was in Australia in 2002 trying to assemble a remote-controlled plane to crash into something somewhere in the US. "This information has never been revealed before," Sheridan pompously avers. He should’ve done some googling.

Saddam Hussein’s threat to attack the US with unmanned planes has been exposed as rubbish years ago. Said Iraqi may well have thought he could assemble and build a plane that he could remotely fly across the Pacific. That sort of thing happens all the time in TV shows and movies, after all. But his delusions shouldn’t be the basis for a counter-terrorism policy.

There seems to have been a similar phenomenon at work in the Benbrika trial. The addled followers of Benbrika, despite their bad haircuts and worse beards, seem to differ little from the sort of mindless thugs who in other circumstances would end in bikie gangs, or thieving cars, or working in the "security industry".

In short, they’re young men who like violence, or at least talking about it. This isn’t to cast doubt on the guilty verdicts, but to suggest that a man who is a wannabe terrorist in one context may well be your local small-time drug dealer and thug in another. That they were caught so easily suggests that their big mouths and poor grasp of reality were rather more important than their Muslim principles.

Having seen the AFP’s bungling in the Haneef trial, and ASIO’s appalling efforts in regard to the abduction and assault of Izhar ul-Haque -- for which, scandalously, no ASIO officers have yet to be prosecuted - you suspect in this case it was the defendants’ stupidity and self-delusion that got them caught, not the sterling work of our wonderful security services and the draconian laws with which they work.

Meantime, the only person in Parliament really talking sense about terrorism is Petro Georgiou, whose private member’s bill for an independent reviewer of Commonwealth anti-terrorism laws is currently being considered by a Senate committee due to report next week. It’s an indictment of both his Opposition colleagues and the Labor Party that he’s been going one-out on this issue, while the rest of them carry on with the sort of drivel we saw yesterday.

punching air .....

Britain's fight against terrorism has been a disaster, because its "flawed, neo-conservative" direction alienated Muslims and increased the chances of terrorist attacks, a former leading counter-terrorism officer has told the Guardian.

Speaking to mark today's fifth anniversary of the 7 July attacks in London, Dr Robert Lambert said the atrocity had led the Labour government to launch not just the publicly declared battle against al-Qaida, but a much wider counter-subversive campaign that targeted non-violent Muslims and branded them as supporters of violence.

Lambert, now an academic, served for 30 years as an officer in Scotland Yard's special branch, dealing with the threat from Irish Republican terrorism through to the menace from al-Qaida.

He was head of a counter-terrorism squad, the Muslim contact unit (MCU), which gained intelligence on violent extremists, and won praise from Muslims, even those who have criticised police.

Lambert said the Labour government adopted a "flawed, neo-con analysis to react to 7 July. The view was that this is such an evil ideology, we are entitled to derogate from human rights considerations even further."

The effect of this, said Lambert, was to cast the net too wide: "The [British] analysis was a continuation of the [US] analysis after 9/11, which drove the war on terror, to say al-Qaida is a tip of a dangerous Islamist iceberg ... we went to war not against terrorism, but against ideas, the belief that al-Qaida was a violent end of a subversive movement."

Lambert said this approach alienated British Muslims, as those who expressed views such as opposition to the wars in Iraq and Afghanistan, also held by non-Muslims, feared that holding such beliefs made them suspects.

"The best way of tackling al-Qaida is to reassure the communities where it seeks support and recruits, is to show those communities that their grievances can be expressed legitimately," Lambert said.

His comments come as Andy Hayman, the former assistant commissioner who led the 7/7 investigation, warns in the Times that Britain remains "under severe risk" from terror attacks.

"There are now probably more radicalised Muslims, their attack plans are more adventurous and the UK still remains under severe risk," Hayman said.