Don Chipp Colloquium

A Bill of Rights in an Age of Fear

Session 1: The politics of human rights protection in the counter-terrorism context

Paper presented by The Hon Duncan Kerr SC, MP, Member for Denison, Member of the Parliamentary Joint Committee on Intelligence and Security

Its commonplace to think that terrorism and democratic politics are polar opposites – one is the use of threatened or actual force by a minority to impose its wishes on a majority, the other a method of putting in place a majority’s wishes. If terror is employed by states, at home or abroad, in the name of the majority, they are regarded as ‘rogue states,’ and the global community seeks ways to ensure they are dealt with as aberrations from the norm.

Yet terror and our response to terrorism have come to play an important part in democratic politics. This is what I want to talk about today, and particularly the way in which, under the Howard Government, terror plays a much larger role than it ever should in the operation of Australia’s democracy.

Governments regulate the conduct of their citizens through a variety of means, ranging from positive inducements (tax breaks, rebates, etc) to more intimidating means such as surveillance and, where those methods fail, coercive means such as fines and imprisonment.

Thinking about a government’s actions in this way opens the way for reflection about the rights citizens have to contest attempts to regulate their conduct. But I’ll return to that later.

At times of perceived danger to the existence of a state or a government’s existence, the means of regulating conduct inevitably slides away from positive inducements and moves further along the path of coercion This is usually justified in terms of ‘national security’.

When national security is invoked to justify policies and practices of intimidation those doing so usually say those measures are necessary for the state’s survival. Many of you will recall or will have heard of the acronym coined by Margaret Thatcher in the 80s to justify her harsh social and economic policies: it was called TINA and stood for ‘There Is No Alternative’.  The governments of countries at war or confronted by internal or external threats inevitably make similar claims.

So it is today, in what some people refer to as an age of terrorism that we hear words of similar implacability.

 “There is no alternative to individual countries that have a terrorist threat within their own borders being serious in words and deed in tackling that problem,” John Howard said at a meeting of APEC minister in October 2002, after the Bali bombing.

Earlier this year Tony Blair told a joint sitting of Australia’s Parliament that “If we want to secure our way of life, there is no alternative but to fight for it. That means standing up for our values not just in our own countries but the world over.” (27 March 2006)

The language of a ‘war on terrorism’ works to reinforce the message that there is no alternative to tough action, pre-emptive strikes, increased surveillance, censorship and security... the list goes on.  Consider the phrases we have heard in association with this war on terror:

‘Either you are with us, or you are with the terrorists’ (George Bush, 21 September 2001)

‘The jihadists will either be at our feet or at our throats.’ (Ted Lapkin, The Canberra Times, March 7, 2006)

‘… I do know that we are on the right side – the side of peace, freedom, and tolerance. And I know we must prevail.’   (John Howard, Address to the Adelaide Enterprise Forum, 8 July 2004)

These black and white representations can mask relationships and problems which are profoundly more complex, and in doing so they limit the corresponding range of possible solutions. But these ‘us or them’ statements are often intended to mask such choices; they are designed to offer us no choice but to support the government in any moves it makes to ‘protect’ us, either from the enemy without or the enemy within, and to behave in ways which facilitate, not impede, the government’s attempts at protection.

The fact that most citizens respond in ways which allows their government to carry out its security agenda is not to invoke a Brave New World of insidious thought control. Fortunately for the most governments, but unfortunately for those who are concerned that fear will override commonsense, their task is made much easier than that, thanks to a combination of factors.

Australians, like many other nationals, seem predisposed to fear ‘the other’ in their midst. We can be easily mobilised against an alleged threat, even if that threat is to highly esoteric notions such as ‘national identity’. One Nation’s success, albeit short-lived, is a good example. Another is the Tampa incident, which showed again that Australians can be encouraged to be highly suspicious of certain classes of other. More recently still, latent racism, mistrust and fear in our community were brought out during the Cronulla riots.

It is no coincidence that these incidents all occurred under John Howard’s watch.  Some are his direct responsibility.—for example he appears to have cynically manipulated the Tampa incident for his own ends – but he was aided in his use of fear in each case by a media which revels in conflict, especially when that conflict can be shown to have a nationalistic or patriotic angle. Australia’s media can be lazy, accepting often without question government assurances—particularly when the language of national security is employed. The thought that alleged security threats might be used cynically by governments seems not to occur to journalists intoxicated by the prospect of terror in our midst.

On this point a comment from Arthur Miller is particularly apt. In a discussion on The Crucible Miller said: ‘Few of us can easily surrender our belief that society must somehow make sense. The thought that the state has lost its mind and is punishing so many innocent people is intolerable. And so the evidence has to be internally denied.’

That brings me to our sedition laws. Amendments to the Crimes Act 1995 enacted in 2005 introduced a crime of ‘sedition’, which is defined so broadly that it could result in people being charged and imprisoned for expressions of dissent against government policy.(i) The Australian Law Reform Commission’s discussion paper on the law recommended that the Commonwealth remove the crime of sedition from the Crimes Act.  In a most welcome act of courage the Opposition has committed to do so — but at least for now it remains on the statute book.

Despicable as I and many others find the sedition law, it acts as an instrument for achieving one of the Government’s aims in this age of fear: silence. The broad definition given to the crime of sedition means that many people will be fearful of criticising Government policy or making other statements, and participating in certain activities such as rallies, which could leave them open to charges of sedition. Most potential critics of the government are not lawyers who can work their way around the fine text of the statutory definition of sedition. All they know is that there is risk in speaking too boldly. That is sufficient to frighten most people. This is power at its most efficient, because it achieves its purpose with no more than printed words on the pages of a statute book: to be effective, this law requires no additional police or security resources, nor potentially embarrassing public arrests of public intellectuals, playwrights, peace activists. Self-censorship is often enough.

A further factor contributing to an environment which is increasingly inhospitable to human rights is the lack of a rigorous check on the actions of the executive.

In Australia the parliament is designed to be a check on the executive, and parliamentary committees particularly so. However it is difficult if not almost impossible for Parliament to adequately scrutinise government moves to restrict freedom in the name of national security. Parliamentarians easily become hostage to a notion that their constituents want strong representatives willing, in Tony Blair’s words, to ‘stand up for our way of life’. Being accused of being ‘soft of terror’ is, in the current climate, a vote loser in many if not most electorates. Nationalism and patriotism reinforce this. Even sophisticated parliamentarians can fall for the lure of defining issues in terms of ‘good’ and ‘evil’ and the rhetoric of a world of ‘us against them’. Those who see the world in those terms vote for legislation accordingly.

Within parliament there are oversight committees which, because of their access to expert evidence and advice, are charged to do the job that parliament as a whole cannot. Those concerned with civil liberties rely upon those oversight committees. But there are limits to the capacity of any parliamentary committee to supervise the executive, especially when it comes to matters regarding intelligence and national security. There are a number of reasons for this. The most critical is that, unlike the case in most comparable countries, the actual operational work of the Australian security agencies, including their strategic priorities, has been placed beyond parliamentary scrutiny.  But there are also more subtle reasons.  Members of parliament’s prestigious foreign affairs and intelligence committees can become insiders—trusted with information with national security classification we can tend to take the word of intelligence officials on face value. We can become intoxicated by our exposure to the world of intelligence and forget that our role is to question, to challenge and to hold agencies to account.

Another reason is that Australia’s intelligence committee includes only Labor and Coalition members—that is the parties of actual or potential government. There are understandable reasons for this.  On security matters Australia’s two major parties are closely aligned – so broad bipartisan agreement on Australia’s fundamental security and foreign policy settings ensures that that particular committee, on which I serve, tends towards a consensus approach to security matters. That consensus includes the proposition that national security can take precedence over individual rights such as privacy and, in extreme cases, even personal liberty.  I am not critical of that consensus—I share it.  But acceptance of that proposition carries dangers. Those of us privy to intelligence briefings can find that the boundary line between hard decisions that are necessary and overreach becomes increasingly agency defined.

What I regard as an example of this happening occurred recently when the committee was tasked to review the 2005 proscription of the Kurdish independence group the PKK.

The majority of the committee members supported the listing of the PKK as a ‘proscribed Organisation’ under the criminal code as proposed by ASIO – though even the majority’s support was carefully qualified by several recommendations. Those recommendations included that the Government consider the number of Australians who support the PKK’s broad aims without endorsing terrorist activity and whether it might be sufficient to ban only the PKK’s military wing, the Kurdistan Freedom Brigade.

There are about 5000 Australians of Kurdish origin. Banning the PKK potentially exposes thousands of Australians of Kurdish background to imprisonment. As a proscribed organisation just belonging to the PKK carries a 10-year jail term. Associating with the PKK carries a three-year term. Many of those potentially affected have lived perfectly ordinary lives in Australia and have had nothing to do with terrorism, but if they identify with the PKK as ‘their party’ in the sense that they support it as a legitimate national liberation movement fighting for the freedom of the Kurdish people, as I understand many do, the consequences for them may be severe. ASIO told the committee it had made no attempt to assess the numbers of Australians of Kurdish background who might hold such views.

The Joint Committee does not divide on partisan lines, but in that case it was not possible to reach unanimous conclusions. As a result, I joined in a minority report with Senator John Faulkner. Our minority report recommended that the Government reassess its listing of the PKK. We pointed out that Australia had previously listed 18 organisations under the Criminal Code but in no previous case has there been reason to believe that the banning of an organisation could catch large numbers of Australians or impinge on their civil rights. The organisations that had been previously banned have been terrorist groups pure and simple or the military (terrorist) wings of larger organisations such as Hamas or Hezbollah. Our minority report asked why any ban could not be limited to the PKK’s military arm — the approach taken on other groups such as Hamas, which have both political and armed aspects.

Whatever the view you may have of the wisdom of the decision reached in the particular case of the PKK, there can be no doubt that the bigger picture shows that the Howard Government has helped to build a climate of fear in Australia in which it is very difficult for voices defending human rights to be heard. It is a climate in which citizens are unusually malleable in response to government injunctions to act in certain ways.

This may be a bleak picture but, unlike John Howard, Tony Blair and their ilk, I do not believe that ‘there is no alternative’. I believe that we almost always have choices in how we react to the changing dynamics of domestic and world politics, and to the risks and threats those changes pose. And I believe that we can respond in ways that keep Australia and Australians secure and at the same time protect and even strengthen human rights.

What this requires is a balancing of risks and freedoms. That in turn requires citizens concerned with the cohesion of their community to make choices and to insist on their voices being heard. The Prime Minister, John Howard, was disingenuous when he claimed there were no alternatives to each and every of the aggressive security measures enacted in the last few years. For my part I accept that Australia has had to update and strengthen its laws to address our changed security environment—but I also believe that those who sought, and still seek, balance to protect our civil liberties were not naïve fools. The dangers of going too far remain.

History is replete with examples of covert agencies such as police special branches, security services and the like charting their own, dangerous, courses. As citizens we are responsible to prevent this. We cannot leave it only to those who ‘know best’. We have choices in the ways in which we respond to any overreach. Forums such as this enable those attending to form their own judgments and to choose whether or not to become further involved in debates and political action

In a strong democracy there is never cause to stifle our voices and limit our actions in ways which are anathema to the robust protection of human rights.

Thomas Jefferson said ‘the natural progress of things is for liberty to yield and governments to gain ground.’ In these troubled times it has the ring of truth.  But the great virtue of a democracy is that we have the power to ensure that our liberty, as well as our security, is preserved. It will not happen if we fall victim to the idea that there is no alternative to ever more draconian laws. Let us not allow Jefferson’s words become the epitaph for our just society.

(i) ALRC Discussion Paper 71. See especially Chapter 7: ‘The ALRC shares the concern that these provisions [s 80.2 (7) and (8)] do not draw a clear enough distinction between legitimate dissent – speech that ought not to be interfered with in a liberal democracy – and expression, whose purpose or effect is to cause the use of force or violence within the state.’ (p 131)