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Issue #1781      June 14, 2017

Tearing the fabric of democratic rights

The NSW government will introduce legislation in the next sitting week of parliament, which starts on June 20, to “provide certainty” to police officers to use lethal force against suspected terrorists Premier Gladys Berejiklian has announced. The increased police power comes out of the inquest into the Lindt Cafe siege of December 2014.

Officers from the state’s Public Order and Riot Squad will have access to rapid-fire weapons by the end of the year.

The Berejiklian government will also introduce draft laws to tighten parole provisions “by requiring consideration of links to terrorism”.

In Western Australia, there is a push to arm police with semi-automatic rifles to stop “active shooter” attacks in Perth. So-called “active shooter” situations are mass shootings involving one or more gunmen, such as the Paris attacks in November.

There was also a push for a centralised Commonwealth supermax prison exclusively for terrorists during last week’s Coalition of Australian Governments (COAG) meeting. The call for a federal high-security prison for people convicted of terrorism charges is a shift towards a secret interrogation/torture facility along the lines of the US Guantánamo camp.

As to making it harder for a person convicted of terror offences to get parole, this will increase the risk that they will re-offend when eventually released, warns the Australian Lawyers Alliance (ALA). Following the COAG meeting last Friday, Malcolm Turnbull announced that all state and territory governments had agreed to “ensure that there is a strong presumption against the granting of parole or bail, consistently, across the country, to persons who have shown support or had links to violent extremism and violence.”

ALA spokesperson Greg Barns said that this approach only increased the risk of prisoners re-offending once they are eventually released back into the community. Suggestions that politicians might seek to be involved in the decision to grant parole were particularly concerning, according to Barns.

Fertile climate

“When prisoners are unable to access parole there is little incentive for them to rehabilitate. A presumption against parole for those convicted of terror or violent offences will create a fertile climate for radicalisation in prisons.”

He said that the issue that COAG failed to deal with was the mistreatment of people who are awaiting trial on terrorism offences and those who have been convicted of terror offences, and that the calls for “terror criminals to rot in jail” are another example of knee-jerk politics. This also highlights the dangers of the suggestion by Commonwealth Attorney General George Brandis that Attorneys-General should have any say in if or when parole is granted.

“The Australian Lawyers Alliance agrees with those state Premiers who have said that politicians should have no role in deciding who should be released on bail,” Mr Barns said. “Terrorism allegations are especially politically fraught. Political involvement in these cases is totally inappropriate.”

The reality is that no politician would be inclined to grant any leniency towards anyone who had a hint of terrorist connections. There is a very good reason for these decisions to be made on the basis of impartial criteria by people who are not a part of the political process.”

It is also unclear how “links to violent extremism and violence” will be measured and the idea that people could be refused parole on the basis of rumour and innuendo, rather than measurable data and concrete evidence, undermines the very fabric of the legal system Barns said.

“If we allow the threat of terrorism to take away our most fundamental rights, we all lose. Rather than focusing on more punishment, we should be figuring out how best to support people in finding pathways away from violence. Investing in essential services in prisons, like mental health support, will do a lot more to keep us safe than removing access to parole will.”

Parole is a means to support people in their reintroduction to the community after time in prison. Without it, people might spend longer in prison, but when their sentence was up they would be released without any support or monitoring.

Barns noted that if politicians wanted to have an impact in reducing the danger of terrorism to the community, treating everyone in prison with humanity, whether they are on remand or convicted of a crime, must be the first step.

“The Prime Minister’s statement is another example of using the fear around terrorism to expand criminal punishment generally. He does not just focus on terrorism, but includes violence as well – it’s classic mission creep. Rather than making policy to grab headlines and ‘look tough on terror’, the Prime Minister should leave parole policy to the experts.”

Uses of the law

The false imprisonment and appalling treatment of an Indian doctor working in a Gold Coast hospital in 2007, demonstrated the possible uses by the state of terrorism laws, in that case those laws introduced by the former Howard government. In the name of “war on terrorism”, the Howard government passed more than 20 bills curbing and removing long-standing basic democratic rights. The laws were wide open to abuse, both by police and government ministers. Soon after, the Rudd Labor government toughened them.

Without a single shred of evidence, Dr Mohamed Haneef was detained for 11 days without charges before appearing before a magistrate who ordered his release. He was denied contact with his wife and subjected to special conditions as a “terrorist”, including solitary confinement for 23 hours a day. The then Workplace Relations Minister Kevin Andrews revoked his 457 temporary work visa on “character” grounds, because he “reasonably suspected” that Haneef had an association with people involved in terrorism.

Under the terror laws, the presumption of innocence is turned on its head, the right to silence is denied and there is no right of access to the “evidence” being used as a reason for detention. Suspicion, hearsay and rumour replace proof, “association” is a crime or grounds for suspicion, and the normal judicial processes are bypassed.

It is history now that Dr Haneef was innocent and there was not a shred of evidence to justify the “suspicions” harboured by police or government ministers. Lies rather than facts prevailed. Their suspicions were unfounded, but the declaration of a suspicion was adequate for arbitrary detention and denial of basic, internationally recognised, legal rights.

The Howard legislation went far beyond any measures required to counter terrorism. The references to terrorism were a smokescreen for the removal of the democratic rights of trade unionists and other political activists who organise and protest against the actions of governments.

The definition of a terrorist act includes both actions or threats that are made “with the intention of advancing a political, religious or ideological cause” which cause “serious harm to a person” or “serious damage to property”; or “create a serious risk to the health or safety of the public”; or “has the intention of coercing or influencing a government”.

The Criminal Code says that advocacy, protest, dissent or industrial action is not a terrorist act providing that it is not intended to cause serious physical harm, death, danger to another’s life or is a serious health or safety risk. This implies that the charge of terrorism could be applied to such actions.

For example, if a serious safety risk or physical harm arises on a picket line or protest march to pressure the government on its policies, then it would become a matter of police opinion and legal wrangling as to the question of intent.

It is not hard to imagine a situation where there is a provocation, followed by violence, injury or serious damage.

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