The Guardian February 11, 2004


The "war on terror" and the war on our right to know

Bob Briton

Since December last year Australia has had new "anti-terrorism" 
laws in place. People have been detained and questioned for 
allegedly having links to or sympathies for terrorist 
organisations like al-Qaida, Jemaah Islamiyah and Lashkar-e-
Toiba. A 20-year-old man in Sydney was the first person charged 
under the new laws: one count of making preparations for a 
terrorist act. He faces penalties which include life 
imprisonment.

The full details of the allegations made by ASIO and the 
Australian Federal Police against Zeky Zak Mallah have not been 
made public. Under the new legislation there is no requirement 
for that to happen. In fact, there is a ban on journalists or 
others disclosing any information relating to the issuing of a 
warrant and conduct connected to such warrants for up to 28 days.

Jail terms of up to five years await them for revealing any 
"operational information" within a two-year period from the 
issuing of the warrant. Even then, the Government would advise 
interested parties to get legal advice.

"Operational information" includes any information being put to 
the person being questioned  who may or may not be suspected of 
terrorist activities  and anything related to how ASIO might 
have gathered its information.

Media concern was so high that the senior management at John 
Fairfax, News Limited, SBS, Commercial Radio Australia, the 
Australian Press Council and the ABC wrote a joint letter in 
early December to Senators then about to consider amendments to 
the Terrorism Act. Their pleas were ignored.

Unaccountable

Even though it has now had its powers enhanced to the point that 
it becomes a fully-fledged secret police force, there are few 
controls on ASIO and plenty of room for it to manoeuvre within 
the law. Bill Blick is the Inspector-General of Security and 
Intelligence but he can only investigate allegations of strict 
breaches of the law.

Parliamentary Committees have limited powers. They cannot 
publicly delve into operational matters and often rely on the 
openness of people who have taken a spy's oath to secrecy. A call 
from defence and intelligence expert Professor Des Ball for new 
structures of oversight under the Cabinet Security Committee will 
almost certainly fall on deaf ears.

The potential for corruption within ASIO, given the experience of 
the relatively much more open state police forces, is obvious. It 
sets the scene for the Australian equivalent of the Birmingham 
Six or the Guilford Four, as pointed out in the mainstream press.

You would think that in these circumstances our newspaper, TV and 
radio news would contain nothing or precious little about the 
"terror suspects" in our midst. However, nearly the exact 
opposite is the case. These services have regular articles about 
some of the 100 Australians that ASIO is reportedly keeping under 
surveillance as part of its "anti-terrorism" brief.

The Herald Sun of the 11th of December had a list of 
eleven of "AUSTRALIA'S TOP SUSPECTS". The list included David 
Hicks and Mamdouh Habib, both now detained illegally in 
Guantanamo Bay by the US military. Also listed is Jack "Jihad" 
Thomas [the Herald Sun's description] who allegedly 
trained with al-Qaida but whose activities predate the new "anti-
terror" laws.

The media reports about Mr Thomas allege that the Melbourne man 
trained with Jemaah Islamiah instructor Azman Hashim at a boot 
camp near Katoomba, west of Sydney. At the same time Rob Stary, a 
lawyer for Mr Thomas, cannot comment on the two-year police and 
ASIO investigation because of the new Federal legislation.

Smear campaign

"National security sources" nowadays appear to be the authors of 
much of the information about "terror suspects" and their 
associates. Occasionally, these sources appear to have a bit of 
fun with what they release to the public. "Karate training in the 
bush is a  long way short of a breach under the terror 
legislation", one source is meant to have told The Australian 
late last year in connection with Mr Thomas' case. The damage 
done to the reputations and livelihoods of Mr Thomas and others 
as a result of this type of ongoing smear campaign is no laughing 
matter.

Of course, the head of ASIO Dennis Richardson and federal 
Attorney General Philip Ruddock are both exempt from constraint. 
Ruddock has been a regular on TV and radio and opens the pipeline 
to a limited amount of information  information of his 
choosing.

Allegations

He can comment coldly about all sorts of things. He has talked 
about how French authorities detained Australian citizen and the 
wife of Willie Brigitte, Melanie Brown, even though there is no 
evidence she had engaged in terrorist activities in Australia or 
elsewhere. He has explained how Brigitte was handed over to the 
French even though he was suspected, supposedly, of planning 
terror attacks in Australia, including one on the Lucas Heights 
nuclear reactor! How mysterious that ASIO never sought to 
interview Mr Brigitte!

Justice Minister Chris Ellison has also been a good source of 
virtually unanswerable allegations. He told the John Laws radio 
program that Bilal and Maher Khazal were "of interest" to 
Australian authorities and that ASIO was investigating links 
between Bilal and al-Qaida. His Australian passport has been 
surrendered and Ellison has declared that any request from the 
Lebanese Government for the extradition of the two men would be 
given top priority.

We are told that the Khazal brothers were convicted in absentia 
on terrorism charges for helping to finance an organisation that 
carried on a violent campaign that included the bombing of a 
McDonald's restaurant.

Compare this approach to the reputations and privacy of 
Australian citizens with the way the Federal Government guards 
its secrets from public scrutiny.

FOI beyond reach

Take, for example, the case of the request from The Australian 
newspaper under Freedom of Information for documents about 
the increasing tax burden on workers. Treasurer Peter Costello 
issued so-called "conclusive certificates" that prevent the 
Administrative Appeals Tribunal from hearing any appeal. The 
matter will have to go to a special hearing of the Federal Court.

Foreign Minister Alexander Downer used "conclusive certificates" 
to block the release of documents about the legality of David 
Hicks' detention at Guantanamo.

In other cases, the cost of acquiring documents under FOI is 
proving to be a strong defensive wall for the government. Media 
organisations are denied the right to plead hardship.

Last year News Limited decided not to go ahead with an FOI 
request about violent incidents in immigration detention centres 
after it was quoted a fee of $158,672.03 for the documents.

Charges for FOI requests have gone up 300 per cent since 1996. 
The number of requests has risen by just 5.5 per cent. Last year 
initial quotes for documents requested under the Federal FOI Act 
totalled $928,124. Only $150,636 or 16 per cent of that was 
collected. Clearly, a lot of people dropped their pursuit of the 
truth when faced with the bill.

The government also uses simple delaying tactics. It took over a 
year to provide The Australian with information about the 
Australian Museum.

Nobody within the bureaucracy, it seems, gets into trouble for 
exceeding the deadlines for completion of requests.

The referral of refused requests to the Administration Appeals 
Tribunal is also a useful delaying tactic.

In other cases, the department in question might act in a way 
that undermines the commercial interests of the applicant. The 
Australian Tax Office and journalist Michael McKinnon were 
engaged in a long and costly battle last year over documents 
revealing the ATO's poor debt collection practices.

The ATO responded to the Administrative Appeals Tribunal decision 
in favour of Mr McKinnon by releasing the information free of 
charge to all the media at the same time.

The Federal government sees the 22-year-old Freedom of 
Information Act as a problem to be managed. Labor's homeland 
security spokesperson Robert McClelland says "The extent to which 
the Howard Government is misusing the processes of Freedom of 
Information is becoming a very concerning trend towards secrecy."

For example, a study produced by the Melbourne Institute showing 
the ineffectiveness of the Work for the Dole scheme was obtained 
under FOI. Other stories bob up in the news from time to time.

The government can side-step FOI entirely by using other devices. 
The workings of the few remaining government enterprises are 
usually exempt from FOI.

The "commercial-in-confidence" excuse covers most dealings with 
the growing number of private operators and other contractors. 
FOI will not give access to embarrassing material registered as a 
"Cabinet Paper".

The trend toward secrecy is a "win/win" for the Federal 
government as it becomes more effective at defending itself from 
legislation that was intended to inform the legitimate concerns 
of the people.

At the same time, it uses the new Terrorism Act and ASIO powers 
to smear individuals it does not approve of.

The labour movement must challenge and reverse this trend. Given 
the level of concern even at official levels, it is clear that it 
will find many allies in the struggle.

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