FacebookTwitterGoogle+RedditEmail

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

More articles by:

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

April 23, 2018
Patrick Cockburn
In Middle East Wars It Pays to be Skeptical
Thomas Knapp
Just When You Thought “Russiagate” Couldn’t Get Any Sillier …
Gregory Barrett
The Moral Mask
Robert Hunziker
Chemical Madness!
David Swanson
Senator Tim Kaine’s Brief Run-In With the Law
Dave Lindorff
Starbucks Has a Racism Problem
Uri Avnery
The Great Day
Nyla Ali Khan
Girls Reduced to Being Repositories of Communal and Religious Identities in Kashmir
Ted Rall
Stop Letting Trump Distract You From Your Wants and Needs
Steve Klinger
The Cautionary Tale of Donald J. Trump
Kevin Zeese - Margaret Flowers
Conflict Over the Future of the Planet
Cesar Chelala
Gideon Levy: A Voice of Sanity from Israel
Weekend Edition
April 20, 2018
Friday - Sunday
Paul Street
Ruling Class Operatives Say the Darndest Things: On Devils Known and Not
Conn Hallinan
The Great Game Comes to Syria
Jeffrey St. Clair
Roaming Charges: Mother of War
Andrew Levine
“How Come?” Questions
Doug Noble
A Tale of Two Atrocities: Douma and Gaza
Kenneth Surin
The Blight of Ukania
Howard Lisnoff
How James Comey Became the Strange New Hero of the Liberals
William Blum
Anti-Empire Report: Unseen Persons
Lawrence Davidson
Missiles Over Damascus
Patrick Cockburn
The Plight of the Yazidi of Afrin
Pete Dolack
Fooled Again? Trump Trade Policy Elevates Corporate Power
Stan Cox
For Climate Mobilization, Look to 1960s Vietnam Before Turning to 1940s America
William Hawes
Global Weirding
Dan Glazebrook
World War is Still in the Cards
Nick Pemberton
In Defense of Cardi B: Beyond Bourgeois PC Culture
Ishmael Reed
Hollywood’s Last Days?
Peter Certo
There Was Nothing Humanitarian About Our Strikes on Syria
Dean Baker
China’s “Currency Devaluation Game”
Ann Garrison
Why Don’t We All Vote to Commit International Crimes?
LEJ Rachell
The Baddest Black Power Artist You Never Heard Of
Lawrence Ware
All Hell Broke Out in Oklahoma
Franklin Lamb
Tehran’s Syria: Lebanon Colonization Project is Collapsing
Donny Swanson
Janus v. AFSCME: What’s It All About?
Will Podmore
Brexit and the Windrush Britons
Brian Saady
Boehner’s Marijuana Lobbying is Symptomatic of Special-Interest Problem
Julian Vigo
Google’s Delisting and Censorship of Information
Patrick Walker
Political Dynamite: Poor People’s Campaign and the Movement for a People’s Party
Fred Gardner
Medical Board to MDs: Emphasize Dangers of Marijuana
Rob Seimetz
We Must Stand In Solidarity With Eric Reid
Missy Comley Beattie
Remembering Barbara Bush
Wim Laven
Teaching Peace in a Time of Hate
Thomas Knapp
Freedom is Winning in the Encryption Arms Race
Mir Alikhan
There Won’t be Peace in Afghanistan Until There’s Peace in Kashmir
FacebookTwitterGoogle+RedditEmail