Terror, Laws and Oversight


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

November 30, 2015
Henry Giroux
Trump’s Embrace of Totalitarianism is America’s Dirty Little Secret
Omur Sahin Keyif
An Assassination in Turkey: the Killing of Tahir Elci
Uri Avnery
There is No Such Thing as International Terrorism
Robert Fisk
70,000 Kalashnikovs: Cameron’s “Moderate” Rebels
Jamie Davidson
Distortion, Revisionism & the Liberal Media
Patrick Cockburn
Nasty Surprises: the Problem With Bombing ISIS
Robert Hunziker
The Looming Transnational Battlefield
Ahmed Gaya
Breaking the Climate Mold: Fighting for the Planet and Justice
Matt Peppe
Alan Gross’s Improbable Tales on 60 Minutes
Norman Pollack
Israel and ISIS: Needed, a Thorough Accounting
Colin Todhunter
India – Procession of the Dead: Shopping Malls and Shit
Roger Annis
Canada’s New Climate-Denying National Government
Binoy Kampmark
Straining the Republic: France’s State of Emergency
Bill Blunden
Glenn Greenwald Stands by the Official Narrative
Jack Rasmus
Japan’s 5th Recession in 7 Years
Karen Lee Wald
Inside the Colombia Peace Deal
Geoff Dutton
War in Our Time
Charles R. Larson
Twofers for Carly Fiorina
John Dear
An Eye for an Eye Makes the Whole World Blind
Weekend Edition
November 27-29, 2015
Andrew Levine
The Real Trouble With Bernie
Gary Leupp
Ben Carson, Joseph in Egypt, and the Attack on Rational Thought
John Whitbeck
Who’s Afraid of ISIS?
Michael Brenner
Europe’s Crisis: Terror, Refugees and Impotence
Ramzy Baroud
Forget ISIS: Humanity is at Stake
Pepe Escobar
Will Chess, Not Battleship, Be the Game of the Future in Eurasia?
Vijay Prashad
Showdown on the Syrian Border
Dave Lindorff
Gen. John Campbell, Commander in Afghanistan and Serial Liar
Colin Todhunter
Class, War and David Cameron
Jean Bricmont
The Ideology of Humanitarian Imperialism
Dan Glazebrook
Deadliest Terror in the World: the West’s Latest Gift to Africa
Mark Hand
Escape From New York: the Emancipation of Activist Cecily McMillan
Karl Grossman
Our Solar Bonanza!
Mats Svensson
Madness in Hebron: Hashem Had No Enemies, Yet Hashem Was Hated
Walter Brasch
Terrorism on American Soil
Louisa Willcox
Grizzly Bears, Dreaming and the Frontier of Wonder
Michael Welton
Yahweh is Not Exactly Politically Correct
Joseph Natoli
A Politics of Stupid and How to Leave It Behind
John Cox
You Should Fear Racism and Xenophobia, Not Syrian Refugees or Muslims
Barrie Gilbert
Sacrificing the Grizzlies of Katmai Park: the Plan to Turn Brooks Camp Into a Theme
Rev. William Alberts
The Church of “Something Else” in “an Ecclesiastical Desert”
Andrew Gavin Marshall
Bank Crimes Pay
Elliot Murphy
Cameron’s Syrian Strategy
Gareth Porter
How Terror in Paris Calls for Revising US Syria Policy
Thomas S. Harrington
Jeff Jacoby of the Boston Globe and the Death of Ezra Schwartz
Michael Perino
The Arc of Instability