The Line Dividing Good and Evil

Savitri Taylor
La Trobe University

If only there were evil people somewhere insidiously committing evil deeds and it were necessary only to separate them from the rest of us and destroy them. But the line dividing good and evil cuts through the heart of every human being.

Alexander Solzhenitsyn

Introduction

1. The events of 11 September 2001 led the Australian Government to conduct a review of Australia’s ability to counter terrorism. The result of that review was the introduction into the Commonwealth Parliament of a package of six counter-terrorism Bills. Eventually, the Government managed to procure the passage of five of the Bills, but in considerably amended form. It remains to be seen whether the Government will procure passage in any form of the sixth and most controversial of the Bills, the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (Cth) (ASIO Powers Bill). The reason for the rough voyage was that the package as originally introduced into Parliament jeopardized human rights and the rule of law and received trenchant and widespread criticism (not least from within the Government’s own ranks) for so doing. Australians mobilized to defend liberal principles, and to a large extent prevailed. This article argues that the battle is not yet won, but is definitely worth fighting.

We are all barbarians

2. In a previous issue of this journal, Ben Hoh questioned whether defending liberal principles was an adequate or even appropriate response to the Government's proposed anti-terrorism legislation. According to Hoh,

Liberal thought has always invested in violent narratives of white supremacy that are not necessarily based on crass xenophobia or fixed, biological theories of race, but on the cultural power of "Western civilisation" as an enlightening and progressive force. This isn’t an historical aberration that we’ve somehow "progressed" from – the popularity of Samuel Huntington’s recent "Clash of Civilizations" thesis, against the backdrop of the "war on terror", is testament to its currency…

"Our" "civilised" Western liberal democratic identity has always been, from the beginning, constituted in opposition to those who are simultaneously defined as "uncivilised". And we all know that any repressive construction of an identity is never complete, and is always manic, especially when it encounters any reminders of this fact (Hoh, 2002).

3. The danger of current political rhetoric that describes the 'civilized world' as engaged in a conflict with the 'uncivilized' rest is undeniable. As Ignatieff has commented in a different context, what we are doing is resolving 'the conflict between the particular and the universal … by deciding that, while all human beings deserve equal moral consideration, really, ['they'] do not deserve to be called human at all.' (Ignatieff, 1998, 55-6). In other words, by rhetorically placing the 'enemy' outside our moral community, we are allowing for the war against it to be unconditional (Scraton, 2002, 2).

4. The moral distancing in which we are presently engaged is, of course, far from unprecedented. It is an unfortunate truth that thinkers of the Enlightenment tradition have always managed (usually subconsciously) to reconcile their professedly universalist moral principles with practices which (in hindsight) are obviously founded on moral particularism. Certainly it was the case even before September 11 that the actual moral basis of so-called liberal democratic societies was not universalism but rather diluted particularism (Taylor, 2001a, 193). How else, for example, can we Australians explain the fact that for many years now we have countenanced laws that respect the (human) right to liberty of non-citizens less than that of citizens? (Taylor, 1998).

5. Since particularism is a moral perspective based on the assumption that an individual does not have inherent moral worth but rather gains moral worth through group membership, a given individual's moral rights are more or less safe in proportion to his or her vulnerability to being defined out of the group. Pre-September 11, most members of the political community of liberal democratic states (that is, citizens) were reasonably safe from experiencing the dark side of particularism. Post-September 11 this is quickly ceasing to be the case. Despite frequent assurances by the US President and other Western political leaders that the ‘war on terrorism’ is not a war on Arabs or on Islam, their actions belie their words. In the Australian context, examples abound of Muslim Australians being treated as second-class citizens (Lyons, 2002).

6. The fact that liberalism in practice falls short of its aspirations simply bears out the sad truth of Solzhenitsyn's observation that no religion or social theory has yet overcome the fact that 'the line dividing good and evil cuts through the heart of every human being' (Solzhenitsyn, 1974, 168). A possible lesson to be drawn is, of course, that all religions and social theories are damned because they can in human practice become the justification for evil doing (Solzhenitsyn, 1974, 173-4; Solzhenitsyn, 1975, 615-6). However, as a black woman, I have reason to be grateful to those of past generations who committed themselves to the realization of moral universalism (Taylor, 2001b, 50), so the lesson I choose to draw is not that I should turn my back on the Enlightenment but rather that I should insist now more than ever that those who profess to be part of its tradition be true to its values.

7. Solzhenitsyn was an army captain until he was 'exposed' as an 'enemy of the people' because of a school friendship unwisely maintained (Solzhenitsyn, 1974, 19-20). In prison he reflected on his life before 'exposure' and came to the following realization,

In the intoxication of youthful successes I had felt myself to be infallible, and I was therefore cruel. In the surfeit of power I was a murderer and an oppressor. In my most evil moments I was convinced I was doing good, and I was well supplied with systemic arguments (Solzhenitsyn, 1975, 615).

Liberal democratic societies have chosen to place their trust not in the hope that goodness will always triumph in the hearts of the individuals who form government, but rather in the capacity of 'government under the rule of law' to prevent the excesses to which a surfeit of power can lead.

8. Central to most 'rule of law' theories is the idea that every action of government must be justified by, and testable against, pre-existing law. In democracies the content of law falls, of course, to be determined by a democratically elected legislature. However, what distinguishes 'liberal' democracies from 'illiberal' ones is their adherence to the view that individuals have some fundamental pre-political moral rights which should not be extinguished, even through laws passed by a political majority. The notion of universal human rights was in a real sense born of liberalism, which understandably renders the notion suspect in the eyes of the many who have good historical reasons for being mistrustful of Western exports. This hostility to all things Western will necessarily be compounded if, 'when Westerners are the victims of mass violence, the same rights norms that restrain the responses of others through the guise of putative universality become derogable, optional, an inconvenience or even annoying.' (Drumbl, 2002, 323).

9. Both liberal societies and the international human rights regime do allow for derogation from 'normal' rules in times of emergency. The key point, however, is that both attempt to regulate derogation as precisely as possible. Thus, for example, article 4 of the International Covenant on Civil and Political Rights (ICCPR) provides that ICCPR rights can be derogated from 'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed' (my italics). However, each specific measure in derogation of an ICCPR right must be shown to be the least oppressive means available for achieving the national security goal, and additionally, the public interest gain of its implementation must outweigh the cost to the affected individuals. This is known as the principle of proportionality. Importantly, also, article 4 specifies that the rights in articles 6 (right to life), 7 (freedom from torture and cruel, inhuman or degrading treatment or punishment), 8 (freedom from slavery), 11 (freedom from debtors' prison), 15 (freedom from sanction under retroactive criminal legislation), 16 (right to recognition as a person before the law) and 18 (right to freedom of thought, conscience and religion) are non-derogable under all circumstances. Furthermore, the United Nations Human Rights Committee, the body charged with monitoring implementation by state parties of their ICCPR obligations, has emphasized that, '[t]he enumeration of non-derogable provisions in article 4 is related to, but not identical with, the question whether certain human rights obligations bear the nature of peremptory norms of international law' (UN Human Rights Committee, 2001, para. 11). A peremptory norm of international law (jus cogens) is 'a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted' (Article 53 of the Vienna Convention on the Law of Treaties). According to the Human Rights Committee,

the category of peremptory norms extends beyond the list of non-derogable provisions as given in article 4, paragraph 2. States parties may in no circumstances invoke article 4 of the Covenant as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance by taking hostages, by imposing collective punishments, through arbitrary deprivations of liberty or by deviating from fundamental principles of fair trial, including the presumption of innocence (UN Human Rights Committee, 2001, para. 11).

10. Many years ago, the German political thinker, Carl Schmitt, derided liberalism's response to the 'exception' (that is, 'a case of extreme peril, a danger to the existence of the state, or the like') saying 'there exists no norm that is applicable to chaos' (Schmitt, 1922, 6 & 13). In other words, a case of exception destroys the precondition necessary for a valid legal order. Schmitt then pointed out that the possibility of the occurrence of the exception was ever present but its nature was impossible to anticipate in advance. He argued that the only workable way to ensure security was to give a single authority the unhampered power to decide when a situation constituting the exception existed, who the 'enemy' was, what measures were required to counter the danger posed by the enemy, and when the restoration of the 'normal' situation could be considered complete (Schmitt, 1922; Schmitt, 1932). Post-September 11, faced with a seemingly permanent blurring of the boundary between normalcy and emergency, the temptation to accept the Schmittian solution is strong. However, the consequences of so doing are likely to be dire (as the German people discovered when they voted Hitler into power).

The international law 'counter-terrorism' regime

11. In response to the events of September 11, the United Nations Security Council, acting under Chapter VII of the United Nations Charter, passed Resolution 1373 of 28 September 2001 requiring, among other things, that all states

Take the necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other States by exchange of information (para. 2(b));
Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts (para. 2(e)).

The Security Council did not, however, provide a definition of 'terrorist acts'.

12. The September 11 attacks fell, of course, within the core of any concept of terrorism (Mathiesen, 2002, 85-6). The problem is that the further one gets away from the core, the harder it is to achieve international consensus on a general definition of terrorism. I have canvassed the reasons for this elsewhere (Taylor, 2002). The practical consequence is that multilateral counter-terrorism treaties have to date proceeded by way of criminalizing certain kinds of actions and prescribing measures that state parties must implement in order to prevent and/or punish those actions. Even before September 11, Australia was a party to, and had legislatively implemented, the Convention on Offences and Certain Other Acts Committed on Board Aircraft, the Convention for the Suppression of Unlawful Seizure of Aircraft, the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, the International Convention against the Taking of Hostages, the Convention on the Physical Protection of Nuclear Material, the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf. In the wake of September 11, Australia made the decision to become party to the two remaining (and newest) multi-lateral counter-terrorism treaties. The purpose of two counter-terrorism Acts passed by the Commonwealth Parliament post-September 11 - the Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002 (Cth) and the Suppression of the Financing of Terrorism Act 2002 (Cth) - is to implement Australia's obligations under the International Convention for the Suppression of Terrorist Bombings and the International Convention for the Suppression of the Financing of Terrorism.

13. Not surprisingly in light of the piecemeal way in which it has developed, the international law counter-terrorism regime is considered by many states (including Australia) to have gaps in its coverage. With a view to plugging those gaps, UN member states have for the past several years been attempting to negotiate a Comprehensive Convention against Terrorism. The greatest obstacle in the way of a successful conclusion to those negotiations continues to be that of coming up with a universally acceptable general definition of ‘terrorism’. Pending the achievement of a comprehensive multilateral treaty regime, it is certainly arguable that simply ratifying and implementing all existing counter-terrorism treaties would not be adequate fulfillment by states of the obligations imposed on them by Security Council Resolution 1373. Moreover, in the circumstances, states clearly have a 'margin of appreciation' in deciding what further national measures to take in order to meet the obligations imposed by Security Council Resolution 1373. However, this margin of appreciation is limited by the continuing applicability of the international human rights regime (UN High Commissioner for Human Rights, 2001).

14. The Security Legislation Amendment (Terrorism) Act 2002 (Cth) (SLAT Act) and the ASIO Powers Bill, which is yet to pass the Senate, contain the most significant aspects of the Australian response to September 11 additional to implementation of existing counter-terrorism treaties. The rest of this article considers whether the response is consistent with liberalism and the international human rights regime.

The Security Legislation Amendment (Terrorism) Act 2002

15. The SLAT Act inserts new offences into the Criminal Code Act 1995 (Cth). It makes it an offence to engage in a 'terrorist act'. It also makes it an offence to provide or receive training for, collect or make documents likely to facilitate, possess things connected with, or engage in other acts preparatory to, a terrorist act, even if the terrorist act does not occur. Finally, it creates offences relating to involvement with a ‘terrorist organisation’.
16. Many submissions to the Senate Legal and Constitutional Legislation Committee (SLCLC) inquiry into the SLAT Bill opposed passage of the Bill on the basis that enforcement of Australia's pre-existing criminal law would adequately meet the requirements of Security Council Resolution 1373 (SLCLC, 2002, 19). The Director-General of Security and the Attorney-General's Department argued, however, that the proposed legislation was needed in order to prevent terrorist acts - a purpose not adequately served by pre-existing laws which were generally directed to punishing criminal acts already completed (SLCLC, 2002, 23-5).

17. A pre-emptive approach to security has obvious attractions. The problem with it, however, is where to draw the line. The solution adopted in the 1926 Soviet Criminal Code was not to try. Solzhenitsyn explains:

For us, intent and action were identical! A resolution had been passed - we would try them for that. And whether it 'was carried out or not had no essential significance'. Whether a man whispered to his wife in bed that it would be good thing to overthrow the Soviet government or whether he engaged in propaganda during elections or threw a bomb, it was all one and the same! And the punishment was identical!! (Solzhenitsyn, 1974, 364)

Jude McCulloch has argued on the basis of cogent evidence that in Western counter-terrorism theory, too, the view is that it is but a short step from a march to a bomb':

terrorism and political activism are seen as part of a continuum….Counter-terrorism theory also maintains that community, non-government and activist organisations frequently – knowingly or otherwise – serve as fronts for terrorist organisations. Terrorism thus provides a pretext for spying on, harassing, incarcerating and even killing people engaged in doing things that many take for granted as rights available to citizens in a democracy (McCulloch, 2002a, 55-6).

It should not surprise then that the original version of the SLAT Bill bore a strong resemblance to the 1926 Soviet Criminal Code.

18. For a start, the definition of 'terrorist act' contained in the original SLAT Bill was extremely wide. SLCLC noted 'the significant concern expressed about the width of the definition' and concluded that there was 'no compelling reason why Australian legislation should reach further than legislation enacted in the United Kingdom, the USA or Canada' (SLCLC, 2002, 39). This was particularly so in light of the fact that 'the United Kingdom and the USA have experienced significantly higher levels of terrorist threat and, indeed, acts of terrorism than Australia has faced or is considered to be facing' (SLCLC, 2002, 39).

19. In order to obtain passage of the legislation in the Senate, the Government was forced to amend the definition of 'terrorist act' to the following:

100.1 (1)….'terrorist act means an action or threat of action where:
(a) the action falls within subsection (2) and does not fall within subsection (2A);and
(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and
(c) the action is done or the threat is made with the intention of:
       (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
       (ii) intimidating the public or a section of the public.
(2) Action falls within this subsection if it:
(a) causes serious harm that is physical harm to a person; or
(b) causes serious damage to property; or
(ba) causes a person’s death; or
(c) endangers a person’s life, other than the life of the person taking the action; or
(d) creates a serious risk to the health or safety of the public or a section of the public; or
(e) seriously interferes with, seriously disrupts, or destroys, an electronic system…
(2A) Action falls within this subsection if it:
(a) is advocacy, protest, dissent or industrial action; and
(b) is not intended:
       (i) to cause serious harm that is physical harm to a person; or
       (ii) to cause a person’s death; or
       (iii) to endanger the life of a person, other than the person taking the action; or
       (iv) to create a serious risk to the health or safety of the public or a section of the public.

The italicized limitations were not in the original version of the definition.

20. The element of intention to intimidate or coerce makes an appearance in almost all attempts to define 'terrorism'. It was the SLCLC's view that its inclusion in the Australian definition

would go a long way towards addressing the concerns it has heard that terrorist offences might otherwise be broad enough to capture those people who cause damage or commit other less serious offences as a consequence of protest, civil disobedience or industrial action (SLCLC, 2002, 39).

Inclusion of the element did not, however, allay the concerns of the Australian Greens, who posited the following example. The harm contemplated in (2)(a) includes self-harm (Ellison, 2002, 2561). Given that immigration detainees who have fasted, sewn their lips and such like to draw attention to their plight have been accused by the present Australian Government of attempting to coerce or intimidate it, persons engaging in such conduct in the future could conceivably find themselves charged with committing a terrorist offence (Brown, 2002a, 2476-7; Brown, 2002b, 2562-4).

21. The exclusion from the definition of 'terrorist act' of actions falling within the description in (2A) is much stronger protection for those exercising the traditional rights of individuals living in a democratic society. Keeping in mind that most protest action involves minor infractions of the law, the present exclusion is certainly better protection than the original exclusion which was for 'lawful advocacy, protest or dissent' and 'industrial action'. However, the Australian Greens again have a point when they suggest that an environmental activist sailing a boat in front of a nuclear warship or nurses closing hospital beds as part of a strike may be argued to intend any foreseeable risk to public health or safety (Brown, 2002a, 2486-7). Such intention, if found, would place these persons outside the protection of (2A).

22. Another controversial aspect of the SLAT Bill in its original form was that it gave the Attorney-General (or a delegate Minister) the power to proscribe an organisation if ‘satisfied on reasonable grounds’ that a Security Council Resolution required it, or the organisation or a member of it had committed, or was committing, a terrorism offence, or the organisation had endangered, or was likely to endanger, ‘the security or integrity of the Commonwealth or another country’. The Bill then created a series of offences ranging from directing the activities of a proscribed organization to being a formal or informal member of a proscribed organization.

According to the SLCLC, a submission from the Law Council of Australia typified the concerns of many organisations and individuals in outlining its reasons for opposing the proposed proscription powers. The Council called the provisions:

a serious departure from the principle of proportionality, unnecessary in a democratic society, subject to arbitrary application, and contrary to a raft of international human rights standards including the right to personal liberty, the right to a fair trial, protection against arbitrary interference with privacy, freedom of expression, freedom of association and rights of participation. Important principles of the rule of law are infringed, including the need for effective judicial remedies when a person breaches the law, and the requirement that criminal offences for which liberty can be deprived after conviction, be clearly defined so that citizens can know permissible limits of activity. (SLCLC, 2002, 46)

23. The SLAT Act as passed creates offences relating to involvement in ‘terrorist organisations’. A ‘terrorist organisation’ is defined as ‘an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act occurs)’ or ‘an organisation that is specified by the regulations’. Unless specified by regulation, the characterisation of an organisation as a ‘terrorist organisation’ would fall to be determined by a court. An organisation can only be specified by regulation to be a ‘terrorist organisation’, if the Attorney-General is 'satisfied on reasonable grounds' that it has been identified as such pursuant to a Security Council-authorised mechanism and that it is ‘directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act occurs)’. Further, any specification by regulation does not take effect until after the parliamentary disallowance period has expired, ceases to have effect two years after commencement (subject to renewal) and is, in theory, judicially reviewable. These safeguards go a considerable way towards allaying fears of politically motivated proscription (which would not, of course, be unprecedented in Australian political history). Finally, the Act as passed makes passive membership of a 'terrorist organisation' an offence only if the organization is 'an organization that is specified by the regulations'. The ALP explained this compromise in the following terms:

On the one hand, mere membership of an organization without any active participation in their activities should not be criminalised. To do so may be criminalising people’s thoughts rather than their actions. On the other hand, Australia should play its role as a good international citizen in assisting other members of the international community to fight terrorism and international terrorist organisations. While we have an in principle objection to criminalising membership per se, we are prepared to make an exception in the case— and only in the case—of membership of organizations declared to be terrorist organizations by the United Nations Security Council (Faulkner, 2002, 2336-7).

24. Yet another controversial aspect of the SLAT Bill in its original form was that many of the proposed terrorism offences, including the ancillary offences, were absolute or strict liability offences punishable by 25 years to life imprisonment. In other words, they were offences in respect of which the prosecution was to be relieved of the burden of establishing that an accused had a blameworthy state of mind such as guilty intent, guilty knowledge or recklessness. It would be enough for the prosecution to establish the doing of the prohibited act, although in the case of strict, as opposed to absolute, liability offences it would be open to the accused to raise a defence of honest and reasonable mistake of fact. The SLCLC noted that, especially in light of the proposed maximum penalties of 25 years to life imprisonment, the creation of absolute or strict liability terrorism offences represented a significant departure from fundamental principles of both Australian criminal law and the international human rights regime. It concluded that the Bill ought to be amended to bring it into conformity with such principles, and this was done. The Act as passed requires the prosecution to prove intention, knowledge and/or recklessness on the part of the accused in order to obtain a conviction. Moreover, the maximum penalties specified for the various terrorism offences have been graduated to reflect relative degrees of blameworthiness.

25. The only major concern about the original SLAT Bill, which was not addressed to any substantial extent in the Act as passed, was the concern about the use of vague terms in the specification of criminal offences. For example, it is an offence to possess a ‘thing’ connected with terrorist acts, to do 'any act in preparation for or planning’ a terrorist act, to be an ‘informal member’ of certain terrorist organizations, and so on. The use of vague terms contravenes the well-established rule of law principle that criminal offences be precisely defined so that an individual can know in advance whether proposed conduct is or is not permissible.

26. Only time will tell whether use of the SLAT Act lives down to the worst fears of its opponents or up to the best of the liberal tradition. In recognition of this, opposition parties forced the inclusion in the SLAT Act of a provision mandating public and independent review of the 'operation, effectiveness and implications of' the SLAT Act and four cognate Acts 'as soon as practicable after' the third anniversary of their commencement. It is our collective responsibility to make that review count, and to ensure that such reviews continue to take place at frequent intervals. As Solzhenitsyn (1975: 640) observed in the Russian context,

the mass mange of souls does not spread through society instantly...There is a certain minimal necessary period of corruption prior to which the great Apparatus cannot cope with the people. This period is also determined by the age of those stubborn people who have not yet grown old. For Russia it took twenty years.

The ASIO Powers Bill

27. The original form of the ASIO Powers Bill was even more frightening than the original form of the SLAT Bill. The Joint Standing Committee on ASIO, ASIS and DSD (Joint Standing Committee), which conducted an inquiry into the Bill, recommended that it be amended to ensure, at least, that the powers contained in it could not be exercised against children under the age of 18. In response the Government amended the Bill in the House of Representatives to prohibit exercise of the powers against children under the age of 14 (section 34NA(1)).

28. The ASIO Powers Bill provides that the Director-General of Security (the head of ASIO) may, with the consent of the Attorney-General, request a 'prescribed authority' to grant a warrant authorising

a specified person to be immediately taken into custody by a police officer, brought before a prescribed authority for questioning under the warrant and detained under arrangements made by a police officer for a specified period of not more than 48 hours starting when the person is brought before the authority (section 34D(2)(b)(i)).

The Attorney-General may give his consent to the request of a warrant only if satisfied

(a) that there are reasonable grounds for believing that issuing the warrant to be requested will substantially assist the collection of intelligence that is important in relation to a terrorism offence; and
(b) that relying on other methods of collecting that intelligence would be ineffective; and
(c) if the warrant to be requested is to authorise the person to be immediately taken into custody, brought before a prescribed authority for questioning and detained that there are reasonable grounds for believing that, if the person is not immediately taken into custody and detained, the person:
    (i) may alert a person involved in a terrorism offence that the offence is being investigated; or
    (ii) may not appear before the prescribed authority; or
    (iii) may destroy, damage or alter a record or thing the person may be requested in accordance with the warrant to produce (section 34C(3)).

29. ‘Terrorism offences’ are the offences discussed above inserted into the Criminal Code Act 1995 (Cth) by the SLAT Act. As the Law Council of Australia pointed out at the time, the original scope of the ‘terrorism offences’ (as proposed in the SLAT Bill) meant that persons could have been detained and questioned regarding

the possible possession of knowledge relating to an urgent action alert issued by a non-governmental organisation such as Amnesty International, relating to a strike by police officers, nurses, fire-persons or other emergency services personnel, or relating to a fundraising drive in support of an organisation advocating independence for East Timor, the overthrow of the military dictatorship and the restoration of democracy in Burma (Myanmar), the end of the Apartheid regime in South Africa, or the removal of the Mugabe Government in Zimbabwe (Law Council of Australia, 2002, 612).

Despite the narrowed scope of terrorism offences in the SLAT Act as passed we are still talking about a situation in which the family members, friends and neighbours of suspected terrorists, as well as journalists, lawyers, religious leaders and a range of others could be detained and questioned in the quest to avoid threats of far lesser magnitude than another September 11.

30. A great deal of the outcry about the ASIO Powers Bill has centred round the fact that the agency to be entrusted with these powers is ASIO. ASIO is far less transparent and subject to fewer and less effective accountability mechanisms than are Australian police agencies (Halstead, 2002, 727-8; Tham, 2002, 466-9). Entrusting such powers to ASIO therefore jeopardizes the rule of law principle that the actions of government be testable against pre-existing law. Since lessening the secrecy surrounding ASIO may well damage its ability to discharge its intelligence gathering function, some have suggested that the solution to the accountability problem is to entrust the proposed powers to the Australian Federal Police instead. This solution appears to have found some favour with the ALP (Morris, 2002a). It is important, however, not to lose sight of the more fundamental issue. The power to detain and interrogate persons, themselves not suspected of any crime, is a power of investigation not available to any Australian agency under existing law (Law Council of Australia, 2002, 621). There is a real question whether the conferral of such a power on ASIO, or any other agency, for the purpose of gathering intelligence about possible terrorism offences, could be considered a proportionate response to the threat of terrorism that Australia faces. Organisations such as Amnesty International and the Human Rights and Equal Opportunity Commission (HREOC) have expressed the view that it could not, with the result that exercise of such a power would be a breach of the prohibition against arbitrary detention contained in article 9(1) of the ICCPR (Amnesty International Australia, 2002, 501; HREOC, 2002, 670).

31. Section 34D warrants could also be used ‘for the taking into custody, detention and interrogation of persons actually suspected of or accused of arrestable terrorism offences, bypassing the procedural safeguards [for criminal suspects] in the Commonwealth Crimes Act’ (Carne, 2002, 645-6). The Government implicitly acknowledged an intention to so use the warrants by passing an amendment that prevents issue of a warrant against a child aged between 14 and 18, unless the Minister is satisfied on reasonable grounds that the child 'will commit, is committing or has committed a terrorism offence' (section 34NA(4)). While it is commendable that non-suspect children will be out of the reach of the ASIO Powers Bill, it far from commendable that suspect children will be within its reach. In fact the stripping of usual procedural safeguards from suspects whether adult or child is a cause for great concern. As the Liberal member for Kooyong (my member I am pleased to say) pointed out in Parliament,

these protections did not spring full blown from the mind of some chardonnay-sipping civil libertarian in an ivory tower. They evolved out of the experience of people who lived through turbulent and violent times: through rebellion, revolution, civil war and religious insurrection. The protections of individual rights were a rejection of the arbitrary use of executive power which had been justified by government as essential to the security of the kingdom and its citizens. This power was curbed because it was realised that its exercise was corrosive to the very order it purported to serve (Georgiou, 2002, 6620-1).

32. The original version of the ASIO Powers Bill provided that a section 34D warrant could not specify a detention period exceeding 48 hours. However, indefinite detention without charge or trial (beyond question a breach of article 9 of the ICCPR) would have been possible through the simple expedient of repeatedly obtaining warrants in relation to the same individual. The Joint Standing Committee therefore recommended that the ASIO Powers Bill be amended to provide that at the expiry of a maximum period of detention of 168 hours (seven days), a detainee would have to be released or charged with an offence (Joint Standing Committee, 2002, 23). This has been done (section 34C(3)(d)). It should be noted, though, that under existing laws police have only 8 hours in which to do the same (Nicholson, 2002). On the basis of observations it has made in the past (see International Commission of Jurists, 2002, 223-5), it is likely that the UN Human Rights Committee would have significant concern about the seven day period.

33. The original version of ASIO Powers Bill was also objectionable because of provisions which operating together would have created a real danger that a person detained for interrogation might be subjected to ill-treatment in breach of article 7 and/or 10 of the ICCPR. Section 34F provided for incommunicado detention, except where the warrant specified otherwise. The reason given for so providing was the need to ensure that the detainee could not contact and alert potential terrorists of the investigation. Many submissions made to the Joint Standing Committee made the point that in recent human experience incommunicado detention has opened the way to serious abuse. It is for this reason that the UN Human Rights Committee recommends in its General Comment on article 7 of the ICCPR that detainees be given ‘prompt and regular access’ to doctors, lawyers and family members (UN Human Rights Committee, 1992, para. 11). Compounding the danger of section 34F was section 34G, which removed the right to silence (making failure to provide information an offence carrying a penalty of five years imprisonment) and simultaneously provided that a person questioned under warrant could have their answers used against them in criminal proceedings for a terrorism offence. In light of all this, a person who had at various times been an officer of the NSW Police Service, the Australian Federal Police and ASIO, made the following prediction in a submission to the Joint Standing Committee:

Established interview and investigation techniques, currently practiced by professional policing agencies that require skill and expertise, will be disregarded and abandoned in place of primitive interrogation methods of the past. The use of violence, intimidation and psychological abuse will potentially become commonplace and the ASIO interrogation may ultimately resemble something of a ‘Star Chamber’ from the 15th century (Halstead, 2002, 730).

34. The fact that questioning is supposed to take place before a prescribed authority would have been little protection against such a future, since detainees could be 'abused and intimidated at times outside the formal questioning time' (McCulloch, 2002b, 584). Likewise, provision in section 34M for video-recording of questioning before the prescribed authority and of any other 'matter or thing' that the authority directs must be video-recorded would not have precluded the possibility of off-camera abuse. The only other safeguard against ill-treatment in the original Bill was section 34J(2). The section provides that a person specified in a warrant ‘must be treated with humanity and with respect for human dignity, and must not be subjected to cruel, inhuman or degrading treatment, by anyone exercising authority under the warrant’. The Soviet Code of Criminal Procedure made similar provision (Solzhenitsyn, 1974, 122). Despite the provision, interrogation by torture took place in the Soviet Union and the most sobering aspect of that fact is that no ‘normal Russian at the beginning of the century’ would have believed a prediction that,

what had already been regarded as barbarism under Peter the Great, what might have been used against ten or twenty people in all during the time of Biron in the mid-eighteenth century, what had already become totally impossible under Catherine the Great, [would be] practiced during the flowering of the glorious twentieth century (Solzhenitsyn, 1974, 93-4).

35. At the urging of organisations such as Amnesty International, the Joint Standing Committee recommended that there should at least be a penalty specified for breach of section 34J(2). The Government responded with an amendment providing for a penalty of two years imprisonment for breach (section 34NB). The Joint Standing Committee also recommended that detailed protocols be developed governing the custody, detention and interview process and that the Inspector-General of Security be given the power not only to monitor but also to enforce compliance with the protocols during proceedings rather than ex post facto (Joint Standing Committee, 2002, 39 & 62). The Government accepted the former recommendation, but not the latter (Williams, 2002). Another recommendation of the Joint Standing Committee was that persons questioned under warrant be provided with protection from self-incrimination in respect of terrorism offences. It pointed out that such protection would probably increase the likelihood of those questioned providing the information sought (Joint Standing Committee, 2002, 44-5). The Government accepted this recommendation (Williams, 2002). Finally, and most critically, the Joint Standing Committee recommended that the ASIO Powers Bill be amended to provide for legal representation throughout of all persons subject to warrant. In order to meet the Government's security concerns, it suggested that this legal representation could be provided by a person selected by the detainee from a list of security-cleared senior lawyers prepared by the Law Council of Australia (Joint Standing Committee, 2002, 36). The Government responded by amending the Bill to provide that a detained person must be given access to a security cleared lawyer unless the Attorney-General is satisfied on reasonable grounds that:

(a) the person is 18 or older; and
(b) it is likely that a terrorism offence is being committed, or is about to be committed, and may have serious consequences; and
(c) it is appropriate in all the circumstances that the person not be permitted to contact a legal adviser [for all or part of the first 48 hours of detention] (sections 34AA, 34C(3B)-(3C)).

36. The Government's desire to have the option of detaining an individual incommunicado for up to 48 hours inevitably raises the suspicion voiced by the president of the Law Council of Australia that ASIO plans to use the time to 'extract information under interrogation using methods which it couldn't if a lawyer was present' (Morris, 2002b). It is worth noting in this context that the UN Human Rights Committee has expressed concern about a provision of the General Terrorism Act 2000 (UK) under which terrorism suspects may be detained for up to 48 hours without access to a lawyer if police believe that access would lead, for example, to others being alerted of the investigation. In its view other less intrusive means existed for achieving the same end and the compatibility of the powers with ICCPR provisions was questionable (International Commission of Jurists, 2002, 225).

37. Assuming, for the sake of argument, that exercise of the extraordinary powers contained in the ASIO powers Bill may, in some circumstances, be appropriate, the final consideration in a rule of law society is to ensure that there are adequate safeguards against promiscuous use. The safeguard built into the legislation is the role played by the 'prescribed authority' in issuing (or refusing to issue) a requested warrant. The effectiveness of this safeguard depends, of course, on the 'prescribed authority' being independent of the executive - a classic rule of law requirement. Accordingly, the Joint Standing Committee recommended that the Bill be amended to ensure that only Federal Magistrates, Federal Judges, or other authority prescribed by disallowable regulation, be able to issue warrants (Joint Standing Committee, 2002, 20). The Government has made the amendment recommended (section 34AB).

38. At the present time, the ultimate fate of the ASIO Powers Bill is uncertain. It has been passed with Government amendments in the House of Representatives. However, the ALP plans to refer the Bill to a references committee when it is introduced into the Senate. This may, as the Attorney-General has suggested, be a Sir Humphrey Appleby method of killing the Bill (Williams, 2002). I for one would not be saddened by its demise. Even with the Government amendments, the Bill is not acceptable to a human rights-respecting society governed by the rule of law that wishes to continue as such.

Conclusion

39. From Stalinism to Nazism, the history of the 20th century should have taught us that the evil most likely to overwhelm us lies within our 'civilized' Western hearts. In our political tradition we have relied upon holding fast to the values of the Enlightenment to save us from ourselves. Let us continue to do so.


Savitri Taylor is Senior Lecturer in Law at the School of Law and Legal Studies, La Trobe University. She teaches Property Law and Public International Law, but for the past nine years her publications* have almost exclusively related to Australian and international asylum seeker law and policy. Email: s.taylor@latrobe.edu.au

Postscript

40. In the wake of the 12 October 2002 bombing of the Sari Nightclub in Bali, which resulted in many Australian deaths, the Australian Government signaled that it would be attempting to procure a strengthening of the newly passed counter-terrorism legislation. For example, it argued that Parliament should give to the Attorney-General the proscription power previously denied him. The Australian Government also tried, in the immediate aftermath of the Bali bombing, to use the bombing to pressure non-Government senators into passing the ASIO Powers Bill. However, the non-Government senators proceeded with their original plan of referring the Bill to the Senate Legal and Constitutional References Committee for inquiry. That Committee has been asked to report by 3 December 2002. In the present climate the demise of the ASIO Powers Bill is far from assured, though all that has really changed is that we have started to experience the price that is sometimes paid for freedom.

41. The Australian Government immediately and strongly suspected that the Bali bombing was the work of Jemaah Islamiah (JI). It therefore urged the UN Security Council to list JI as a terrorist organization and on 26 October this happened. The listing enabled the Australian Government to specify by regulation that JI was a 'terrorist organisation', which it promptly did. It had already managed to procure passage of the Criminal Code (Terrorist Organisations) Bill 2002 (Cth) allowing for the listing of a 'terrorist organisation' by regulation to take immediate effect (though the regulation will still be disallowable by Parliament in the usual way). Since then, ASIO agents in the company of heavily armed police and under the authority of search warrants have conducted military-style raids on the family homes of suspected JI supporters in Sydney, Melbourne and Perth. It is difficult to understand why a knock on the door would not have sufficed, unless the raids were intended to attract the publicity that they inevitably did. Whatever the reason for the heavy-handed approach, it only reinforces my view that our hold on Enlightenment values will be all too easily broken unless we are vigilant in guarding against it.


Bibliography

* Savitri Taylor's recent publications include: "Guarding the Enemy from Oppression: Asylum Seeker Rights Post-September 11", Melbourne University Law Review, vol. 26 no. 2 2002, 396-421, and "Exclusion from Protection of Persons of Bad Character: Is Australia fulfilling its Treaty-based Protection Obligations?", Australian Journal of Human Rights, vol. 8 no. 1 2002, 83-106 .

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