FacebookTwitterGoogle+RedditEmail

Terror, Laws and Oversight

by BINOY KAMPMARK

Trust any bureaucracy to make an important role dull and seemingly vacuous. “Mr Bret Walker SC was appointed by the Governor General on 21 April 2011 as the first Independent National Security Legislation Monitor (INSLM) under the Independent National Security Legislation Monitor Act 2010”. If this doesn’t desensitise you to human rights, nothing will.

The reason why Mr Walker’s position has come under scrutiny is that, after Wednesday, it will cease to exist. The Australian government, intoxicated by secrecy, will have another reason to move further into the dark. Prime Minister Tony Abbott and his henchmen (there are virtually no women) will wield knives and hack their way to tape-free glory in what has been termed “repeal day”. Bureaucracy is set for the chop.

The reasoning by Abbott is based on two rationales. The monitor will be abolished as “all relevant legislation has already been reviewed and the former government ignored all the monitor’s recommendations.”

First, you abolish an entity that is not being listened to. This, in principle is fine, though it discounts the quality of the advice offered. Good advice is often ignored in government circles and it follows that the sounder the advice, the less likely it will be followed. As Walker explains, “The functions of the INSLM go no further than review, report and recommend.” The position has the potential of being a sagacious paper tiger whose advice, if ignored, tends to foster “scepticism … about the political imperative to have the most effective and appropriate counter-terrorism laws”.

The second point is also fundamental – the role is being quite aptly done by others. According to Parliamentary Secretary Josh Frydenberg, the inspector-general of intelligence and security, the Australian Commission for Law Enforcement Integrity, and joint parliamentary committees, were more than adequate. Such faith demonstrates the instinctive belief that Parliament, and its creations, are wise beyond reproach.

As has been pointed out by the Australian Privacy Foundation, if the Australian government wishes to wield the axe over something, go for the “array of draconian and wholly unnecessary counter-terrorism laws that have eroded basic rights, for which task the Monitor’s balanced and expert input would be invaluable.” The relevant question is whether the monitor has been acquitting himself of that task. On closer inspection, there is reason to regard that advice as mixed.

Till now, the INSLM has concerned himself with reviewing parts of the Criminal Code, the Defence Act and the Crimes (Foreign Incursions and Recruitment) Act. Matters such as the woefully unclear definition of terrorism have featured in reports. This is typical in Australian legislation which adopts different definitions of what should be the same concept. “In particular, the fact and nature of the differences between the definition of terrorism for the purposes of the Criminal Code and the definition of terrorism found in the Terrorism Financing Convention are difficult to justify.” So far, so good, even if trite.

There are also nuggets of persuasive wisdom. The monitor shows sympathy for the onerous nature of a prosecution’s case in proving a terrorism financing offence, “but is not satisfied that the lowering of the fault elements to negligence or strict liability would be appropriate.” If you allege it, so goes this line of reasoning, you must prove it under good standards of criminal law. Easier convictions do not necessarily make laws effective.

The reality remains that much advice from the monitor has not been a bed of roses on matters of oversight and trimming back draconian laws. After all, Walker has also been concerned with seeing the efficacy of such laws improved, adding fangs to the instruments. He objects, for instance, to part listings of Hamas and Hezbollah as “terrorist” organisations, a situation that he finds unnecessarily confusing. It is either terrorist, or it is not. (Countries such as the US and Canada think those organisations are terrorist.) “In the INSLM’s view, this is a serious error that has resulted in less than the intended efficacy in the implementation of this part of Australia’s counter-terrorist international obligations.” Principled prosecutors should know better.

Other points deal with how to bring Australian laws in line with international obligations to fight terrorism within the context of the UN Charter. Then come evaluative matters. Is it possible to actually gauge how effective Australia’s terrorism financing legislation has been? The reality remains, as with so much battling an abstract concept, that data on this is skimpy at best.

There have been cumulative reports, and these have been studiously ignored by the governments of the day. Much of this suggests that the monitor’s position was established by the Australian Labor government in 2011 to give the impression of genuine concern over the quality of anti-terrorism laws, many of which were passed during the years John Howard was at the helm. Action has been nigh non-existent.

The agenda of secrecy and abuse has been set by the Abbott government, which will happily dismiss any role that ostensibly prides itself on oversight. The short road from parliamentary democracy to police state mania is not a tough one to take, especially by sleepwalkers of history. But reactions to the monitor’s abolition will be mixed.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge.  He lectures at RMIT University, Melbourne.  Email: bkampmark@gmail.com

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

More articles by:

CounterPunch Magazine

minimag-edit

bernie-the-sandernistas-cover-344x550

zen economics

December 07, 2016
Michael Schwalbe
What We Talk About When We Talk About Class
Karl Grossman
The Next Frontier: Trump and Space Weapons
Kenneth Surin
On Being Caught Speeding in Rural America
Chris Floyd
In Like Flynn: Blowback for Filth-Peddling Fascists
Serge Halimi
Trump, the Know-Nothing Victor
Paul DeRienzo
Flynn Flam: Neocon Ex-General to Be Trump’s National Security Advisor
Binoy Kampmark
Troubled Waters: Trump, Taiwan and Beijing
Tom Clifford
Trump and China: a Note From Beijing
Arnold August
Fidel’s Legacy to the World on Theory and Practice
Dave Lindorff
Is Trump’s Idea To Fix a ‘Rigged System’ by Appointing Crooks Who’ve Played It?
John Kirk
Cuba After Fidel
Jess Guh
Repeal of Affordable Care Act is Politics Playing with the Wellbeing of Americans
Eric Sommer
Team Trump: a Government of Generals and Billionaires
Lawrence Davidson
U.S. Reactions to the Death of Fidel Castro
John Garvey - Noel Ignatiev
Abolitionism: a Study Guide
Clancy Sigal
Caution: Conspiracy Theory Ahead!
December 06, 2016
Anthony DiMaggio
Post-Fact Politics: Reviewing the History of Fake News and Propaganda
Richard Moser
Standing Rock: Challenge to the Establishment, School for the Social Movements
Behrooz Ghamari Tabrizi
Warmongering 99 – Common Sense 0: the Senate’s Unanimous Renewable of Iran Sanctions Act
Norman Solomon
Media Complicity is Key to Blacklisting Websites
Michael J. Sainato
Elizabeth Warren’s Shameful Exploitation of Standing Rock Victory
David Rosen
State Power and Terror: From Wounded Knee to Standing Rock
Kim Ives
Deconstructing Another Right-Wing Victory in Haiti
Nile Bowie
South Korea’s Presidency On A Knife-Edge
Mateo Pimentel
Some Notes and a Song for Standing Rock
CJ Hopkins
Manufacturing Normality
Bill Fletcher Jr – Bob Wing
Fighting Back Against the White Revolt of 2016
Peter Lee
Is America Ready for a War on White Privilege?
Pepe Escobar
The Rules of the (Trump) Game
W. T. Whitney
No Peace Yet in Colombia Despite War’s End
Mark Weisbrot
Castro Was Right About US Policy in Latin America
David Swanson
New Rogue Anti-Russia Committee Created in “Intelligence” Act
George Ochenski
Forests of the Future: Local or National Control?
December 05, 2016
Bill Martin
Stalingrad at Standing Rock?
Mark A. Lause
Recounting a Presidential Election: the Backstory
Mel Goodman
Mad Dog Mattis and Trump’s “Seven Days in May”
Matthew Hannah
Standing Rock and the Ideology of Oppressors: Conversations with a Morton County Commissioner
Kevin Zeese - Margaret Flowers
#NoDAPL Scores Major Victory: No Final Permit For Pipeline
Fran Shor
The End of the Indispensable Nation
Michael Yates
Vietnam: the War That Won’t Go Away
Michael Uhl
Notes on a Trip to Cuba
Robert Hunziker
Huge Antarctica Glacier in Serious Trouble
John Steppling
Screen Life
David Macaray
Trump vs. America’s Labor Unions
Yoav Litvin
Break Free and Lead, or Resign: a Letter to Bernie Sanders
FacebookTwitterGoogle+RedditEmail