Attack on civil rights resumes

Bob Briton

The Howard Government has wasted no time in putting the civil 
rights of Australians back on the Parliament's agenda. If passed, 
three bills currently before the Parliament would be added to the 
other 19 federal "anti-terrorism" laws it has enacted since 
September 11, 2001. In common with much of the other legislation, 
the latest bills pose serious threats to people's privacy and 
their right to a fair trial.

The first bill contains amendments to the Telecommunications 
(Interception) Act 1979. It purports to "clarify" the situation 
created by the development of communications like SMS text 
messages, email and voicemail. This "stored communication" was 
not dealt with specifically in existing legislation. The 
Government has seized the opportunity to deny any right to 
privacy for people using those sorts of communications.

The bill will allow Australia's intelligence and law enforcement 
agencies to intercept this "stored communication" without a 
warrant. The threadbare excuse offered by Attorney-General Philip 
Ruddock for this invasion of privacy is that the new types of 
messages are qualitatively different from "live" or "real time" 
communication like telephone calls. Therefore, according to the 
AG's logic, it is perfectly all right to spook on them without a 
warrant.

This is absurd. SMS, email and voicemail are used in everyday 
exchanges with the same intention as "live" or "real time" 
conversations. They are still meant to be private communications 
in the same way a phone call is. A person may send an email to 
several addressees at once but it still meant for their eyes 
only. A person might ring somebody else, discover that they are 
unavailable and leave a message. Why the message is less 
deserving of respect than the telephone conversation that might 
have taken place instead defies logic.

The other bills are renewed attempts to reduce people's rights 
before the courts. They seek to give the Attorney General the 
power to issue special certificates that will prevent the defence 
from gaining access to documents or from calling and questioning 
witnesses. The stated intention is protect national security, but 
those words are being given a very broad meaning — they 
encompass "defence, security, international relations, law 
enforcement interests or national interests".

Documents and testimony that could help to put a defendant away 
for long terms in jail will be off bounds to the defence. Of 
course, this puts severe limits on the ability of the accused to 
defend themselves.

The terms of the legislation are so broad that it could be 
invoked in virtually any criminal trial, not just in terrorism 
proceedings. The government could use the legislation to prevent 
exposure of adverse information about their handling of a range 
of issues such as the economy and the treatment of asylum 
seekers.

The legislation would also give the courts the power to order the 
defendant, his or her representative or both to leave the court 
while the Crown gives evidence in secret. The defence would then 
be invited back to answer allegations raised in the evidence that 
they were prevented from hearing. The feature of the adversarial 
system of justice previously regarded as sacrosanct, in which the 
defendant or their representative should be in court at all 
times, is about to go out the window.

The government is trying again to manipulate who can represent a 
defendant when information that may prejudice "national security" 
is involved. The Attorney-General could give written notice of 
this situation and require defence counsel to get a security 
clearance. The imposition of these secret procedures worries the 
Law Council of Australia. It does not approve of the government's 
meddling in the defendant's choice of counsel and the 
independence of the legal profession from the government of the 
day.

The bills have all the hallmarks of a police state. They bear a 
striking resemblance to US denial of justice in Guantanamo, as 
Australians David Hick and Mamdouh Habib are experiencing. The 
potential for them to be used against the political enemies of 
the government without any public scrutiny is obvious.

The Howard Government has shown its hand very early in its new 
term in office. It clearly intends to take every opportunity to 
extend its control of the courts and to monitor the 
communications of whosoever they choose.

Any sense that the government would be satisfied with the swag of 
this type of legislation it got through the previous Parliament 
is shattered. And, of course, if the current Senate stands up for 
the democratic rights of Australians and rejects the legislation, 
members of the new Coalition-dominated Senate take their seats in 
July. The opposition to this power grab has to be reinforced and 
quickly. The stakes are extremely high.