Stepping Back From Secret Police State

Alan Ramsey - Sydney Morning Herald

Six months ago John Howard pulled on his balaclava and strode into the Parliament with his sledgehammer. It was 11.59am, Thursday, December 12. Our Prime Minister was in full ASIO raid mode. His target was the Labor Opposition. His motive was political. His intent was resolute. And, thus fortified, morally and spiritually, he stood at the dispatch box and told a monstrous lie. During a 12-minute speech what Howard said, in part, was: "Labor's amendments will wreck the bill and render it inoperable. From the very beginning Labor has not been serious about serious and necessary amendments to the ASIO legislation. Labor is not fair dinkum ...

"The Labor Party realise they are going to be judged as soft on this issue by the Australian people ... What we have today is another illustration of the Labor Party being unwilling to see the real national interest. And the real national interest of Australia at the moment demands a stronger stand against terrorism ...Labor are very weak, just as they were weak on border protection. They remain weak on border protection. They are weak on this issue ...

..Thirty-five minutes later he closed the Parliament for the year and went home to Sydney for Christmas. If the Prime Minister couldn't have the bill he wanted, there'd be no bill at all. If ASIO couldn't have the unfettered and unchallengeable right to pick up, on special warrant, people as young as 14, anywhere, any time, detain them in secret, tell nobody, question them for as long as a week, charged with nothing, suspected of nothing except maybe - maybe - having information they may not even realise they possessed, then ASIO would get no new powers of any kind. Well, not for the time being, anyhow.

So what had Labor done?

..What the Senate did was make 35 amendments, 34 of them Labor's. In doing so, the key changes that so "vandalised" the "national interest" - all of them voted against by the Government in the Senate and, ultimately, rejected by the Prime Minister's majority in the House - were, what?

In summary:

1. the proposed new ASIO "investigative" powers automatically would lapse after three years unless Parliament re-endorsed the legislation;
   
2. the legislation would apply to nobody under the age of 18;
   
3. the bill's denial of the right to silence was circumscribed by specific civil rights protections, including against self-incrimination in any future charge;
   
4. a person could only be detained for questioning and not simply for the purpose of detention without charge;
   
5. detention under a single warrant could last no longer than a total of 20 hours of questioning, broken into three periods of four hours, eight hours and eight hours;
   
6. a judge or retired judge would have to be present during any and all questioning;
   
7. the right of immediate legal representation of choice; and
   
8. no person would be subjected to more than one broken session of 20 hours of questioning in a seven-day period, while no person already questioned for a total of 20 hours could be held in detention.

..Six months later and his own words are proved meaningless. Why? Because most of the changes Howard fumed against last December his Government now accepts. The ASIO powers bill Howard "killed" six months ago has been resurrected and redrafted. In it are most of the changes Howard insisted six months ago were "inoperable, unworkable, a fraud and a fabrication".

And that is Howard's great lie. His change of heart exposes him, again, as a crafty humbug more intent on milking the threat of terrorism for political advantage rather than legislative action in "the national interest". If you think "monstrous lie/great lie" too harsh, consider this.

The Government's original stance on ASIO's powers included: indefinite secret detention, no legal representation, no judicial supervision, no age limit, no protocols, no right to silence, no sunset clause to limit the duration of the bill, no reporting mechanism to Parliament of any kind and no parliamentary review. The revised ASIO bill the Senate debated for most of this week - and will go on debating most of next week - excludes or qualifies most of these powers. The new bill, however contentious it might remain, is light years in advance of what it was.

The only age limit in the original bill - announced in March last year - was a lower age limit of 10 for detainees who could be strip-searched. That's right - 10! I mean, how draconian can a Government be and still pretend it's democratic? (Sub-10-year-olds, I remind you, were to be, or could have been, legally detained by ASIO indefinitely, with not even their parents told. The whole purpose of this police state power was to pick up kids to get them to inform on family members - and to go on holding them, in secret, so they couldn't alert anyone to what was going on.)

By last December, the Government had shifted ground to adopt a lower age limit on "investigative" detention of 14. The Labor/Greens/Democrats lower age limit was 18. Labor and the Government have now compromised on 16. And only 16- to 18-year-olds - that is, juveniles - suspected of actual terrorist activity can be detained. The Government has dropped its earlier insistence of ASIO's right to detain juveniles - as they will be able to detain adults - for questioning only about information they "may" have, knowingly or otherwise.

The Government also has adopted the Senate's insistence the legislation lapse after three years if not re-endorsed by Parliament. So, too, has it agreed to:

1. supervision by a judge of all ASIO questioning of detainees;
   
2. a detainee's right to immediate legal representation of choice;
   
3. protocols governing the actual operation of the powers to be tabled in Parliament;
   
4. parliamentary supervision of the numbers of warrants issued to ASIO for detention under the bill's powers and the numbers of hours of ASIO questioning.

The hardline sticking points between the Government and its Senate opponents concern three key issues: 1) the length of time a detainee can be held under a single warrant; 2) the issue of onus of proof in removing a detainee's right to silence; and 3) the crunch issue of continuous periods of detention. This last matter could see the whole of the Government's grudging co-operation shattered. Debate adjourned two days ago and will resume on Monday. Labor will not support a regime of rolling warrants to detain a person indefinitely. Neither will the Greens nor the Democrats.

If the Government insists ASIO must have such a right, then, for the third time in the 15 months Howard has been trying to get his ASIO powers bill into law, the legislative process will founder in Parliament.

Understand two things. The Government and Labor now agree on a maximum questioning period for a single detainee of 24 hours, broken into three blocks of eight hours with no one session being longer than four hours without a break. But the Government wants the 24 hours to have a time frame across a maximum of seven days' detention. Labor says no, it must be 24 hours across three days only, then the detainee must be released, permanently. Also, the Government, for its part, is arguing the right to seven days' detention under a single warrant, and then a further warrant for another seven days, and so on indefinitely, if necessary. In other words, indefinite detention without charge, plus continuous rolling periods of questioning.

Think about it. This is exactly what the US imposes on the several hundred terrorist "suspects", including two Australian citizens, it still holds and has been holding in isolated military detention in Cuba's Guantanamo Bay for more than 18 months, all without charge, all without recourse to any legal assistance.

You see where this Government of ours gets its creative impetus from for "combating terrorism"? Good ol' George and the boys.

Perhaps now you also understand why, maybe, John Howard has suddenly got this bright idea to end the Senate's right to "frustrate" a government's legislative program.

Think good and hard about that, too.