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Issue #1663      November 5, 2014

Foreign Fighters Bill: wide open to abuse

The Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 is expected to be given Royal assent and become law this week. “The rapid resurgence in violent extremism and the participation in overseas conflicts by some Australians present new and complex security challenges for our nation,” Attorney General George Brandis said in his Second Reading speech.

“The ongoing conflicts in Syria and Iraq are adding to this challenge and the number of Australians who have sought to take part, either by directly participating in these conflicts or providing support for extremists fighting there, is unprecedented.”

But the provisions have far wider scope than just dealing with foreign fighters and violent extremism. They amend 20 Acts including social security.

In a submission to the Parliamentary Joint Committee on Intelligence and Security about the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill, the Australian Lawyers Alliance (ALA) said that the new laws threaten the independence of the judiciary, introduce retrospective warrants and more than triples the period an individual can be detained without others being notified.

“Fundamental to our rights as citizens is the right to be free. The power to detain without warrant, without charge, without access to legal advice is normally reserved for dictators and tyrants. No free society unnecessarily cedes to its government powers of detention without review,” their submission said.

The Bill broadens the criteria for listing of terrorist organisations and related offences. “… it is vital that our laws target not only terrorist acts, but also the organisations that plan, finance and carry out such acts,” Brandis said.

It provides for the continuation for another ten years a number of the Howard government’s “anti-terrorism” measures including control orders; preventative detention orders; police stop, search and seizure powers; and ASIO questioning and detention powers so that they will continue to be available to relevant authorities. These provisions were due to expire under sunset clauses. (See Australian Marxist Review, “Fighting terrorism or fighting democracy“, Issues 43, January 2006.)

The Bill increases the powers of law enforcement and security agencies to monitor and investigate individuals.

Delayed notification search warrants

The Australian Federal Police (AFP) will be able to covertly enter and search premises without the knowledge of the occupier of the premises, and then seek a “delayed notification search warrant” and notify the person being investigated at a later date.

“Under the legislation, judicial officers will be able to issue ‘delayed notification search warrants’, which in effect are warrants that retrospectively authorise the activity that the police have already carried out.”

This is wide open to abuse by police who if, for example, are convinced of a person’s guilt but lack the proof they require, may plant “evidence”.

The Bill also amends the arrest threshold for foreign incursion and terrorism offences to allow the police to arrest individuals on reasonable suspicion, rather than reasonable belief.

Currently an organisation can be listed as a terrorist organisation if it directly or indirectly counsels or urges the doing of a terrorist act, directly or indirectly provides instruction on the doing of a terrorist act, or directly praises the doing of a terrorist act.

It introduces a new offence of “advocating terrorism” which applies to individuals “promoting terrorism”. The offence carries a maximum penalty of five years imprisonment.

“Declared area offence”

The Bill creates a new offence of “entering a declared area overseas” where terrorist organisations are active. The onus of proof is reversed with the suspect required to prove they had a legitimate reason for travelling to the area. The offence carries a life sentence.

Possible legitimate purposes include providing aid of a humanitarian nature, making “bona fide” visits to family members, appearing before a court or performing a domestic or foreign government duty or a duty for the United Nations.

The Minister determines which areas are declared as no-go zones.

Customs’ detention powers will be expanded where the officer has reasonable grounds to suspect (not believe) that the person is intending to commit a Commonwealth offence, or is a threat to national security or the security of a foreign country.

The powers to collect and use personal identifiers of citizens and non-citizens both arriving and departing from Australia are also expanded. The Bill allows for the collection of biometric and other data of people entering and leaving the country.

ASIO will also be able to recommend the cancellation of a visa of a person who is offshore, who ASIO suspects might be a risk to security. ASIO could also request suspension of Australian passports and seize foreign passports (the property of a foreign government)!

People who are suspected of preparing for or participating in a foreign incursion receive punishments ranging from life imprisonment to loss of social security benefits. This is before a court has even upheld that they are guilty of an offence.

“… under this new legislation, an individual could receive a life sentence just for being associated with another person or people planning to fight overseas. They could be handed a life sentence for attending a training session or even for offering a room to be used for a meeting,” ALA spokesperson and barrister Greg Barns said.

“The Foreign Fighters Bill reduces the role of judicial oversight and approval of police warrants to that of a rubber stamp.”

Barns warned that the Australian Constitution and the doctrine of the separation of powers, had previously reserved punishment solely for the courts.

“The new laws also give authorities the power to cancel social security entitlements for people suspected of being associated with terrorist activity,” Mr Barns said. “These are people who have never been charged with a crime, never been found guilty and could be innocent.”

Unprecedented surveillance

Under the legislation, the content of every single phone call, every single text message, email or online communication will available to be accessed by security agencies such as ASIO or the Australian Federal Police. Something which is already occurring.

“The revelations following the experience of whistle-blowers such as Edward Snowden show us that our data is routinely misused by security agencies in the pursuit of their goals,” Barns said.

Nothing that Brandis or other government ministers have said justifies such extreme, fascistic laws. The new laws will not make Australia a safer place or protect national security and our civil and democratic rights.

Next article – Act Now! Stop closure of women’s refuges

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