While on the topic of connivance at constitutional rollback — here’s some rather funny grandstanding by Australian Greens senators in November 2005.
To set the scene: in response to ‘specific intelligence and police information’ of a ‘potential terrorist threat’, John Howard has recalled the Senate for an ’emergency’ session to pass the Anti-Terrorism Act 2005 [No. 1].
This bill would extend the scope of terrorist offences to include conduct where no specific ‘terrorist act’ (i.e. one with a target, time, date, method or equipment) is planned, discussed or occurs.
The Greens senators react with fury and stylized dismay, their leader operatically flinging his arms about in unaccustomed passion.
Kerry Nettle (NSW):
What do you think all the other 30 pieces of antiterrorism legislation that have been passed in the Senate since September 2001 were about? They have given our government extraordinary powers: the power to detain people without trial, without taking them before a court, for seven days to question them. These are extraordinary powers…
That is not good enough for this government and for the security agencies. They need more powers than the already extensive, draconian, extreme powers that they have that undermine fundamental tenets of our legal system, that do not allow for proper judicial review where people can test the merits of a case and can go before the court and argue: ‘I am not a terrorist.’…
The public outpouring of opposition to the antiterrorism laws, despite the lack of leadership from the opposition, has been enormous. Not one significant legal figure has backed the government’s proposed antiterrorism laws. The Law Council, former judges and former prime ministers have all attacked the laws. As I said before, the Human Rights and Equal Opportunity Commission president, John von Doussa QC, has said the laws will make Australia into a police state… [Quoting] Ian Barker QC: “Today we are on the edge of a slide into our own 21st century form of fascism: secret arrests, secret detention, secret interrogation by secret people.”
This is what these antiterrorism laws are about, and today is a part of that…
We as senators are not here to rubber-stamp more draconian security laws like the 30 pieces of legislation that have already gone through this Senate. This is another one, and [the Prime Minister] wants a whole stack more to go through in a couple of weeks. That is not what the Senate is for. That is not what democracy is about, and I and the other Australian Greens senators will have nothing to do with it.
Christine Milne (Tasmania):
This is about basic matters, like civil liberties and the rule of law. We have had a number of people in the judicial system around the country expressing grave concern about what is going on…
I would like to conclude by saying that during the time of my education people reflected for a long time about what happened in Europe during the war. As a child I was quite fascinated by the history of that period, being a part of the baby boomer generation. I could never understand how it was that decent and good people who knew what was going on did not do anything…
There are decent people in Australia who are currently turning their backs and not wanting to know how it is that someone can be just dragged off the street, put into detention and deported from the country…
Under these laws the whole concern is about being able to take people out of the community, accuse them of something and put them into detention, and everyone else just keeps on with their day-to-day existence as if this is all right and the rule of law, international human rights and our global obligations can all just be set to one side because a government says that this person is a risk…I keep with me something that became etched onto my brain at one time. I have thought about it for years since. It was particularly pertinent during the campaign for gay law reform in Tasmania. It stays with me now in terms of this legislation. It says:
First they came for the Jews
and I did not speak out
because I was not a Jew.
Then they came for the Communists
and I did not speak out
because I was not a Communist.
Then they came for the trade unionists
and I did not speak out
because I was not a trade unionist.
Then they came for me
and there was no one left
to speak out for me.
Bob Brown (Tasmania):
We might look at the words of much greater Prime Minister Curtin, who warned 30 or 40 years ago that those of us who concede — for a moment, a political passing — great and important freedoms and liberties in our democracy are doing the wrong thing. The Greens will not do that…
We must take terrorism seriously, and we do. But we also have a very serious onus on us, in a democratic parliament, to seriously defend the rights, privileges and freedoms that make Australia the country it is. We need to be on the alert for politicians who would sell that and erode it, just a little at the edges…
Rachel Siewert (WA):
To call those of us who are raising concerns about this un-Australian and to imply that we are soft on terror is an insult — an absolute insult — particularly to those of us who hold nonviolence and peace so dear and so fundamental to all that we do. It is an insult to Australians, who deserve a full public debate and who elected us knowing full well what our principles were and knowing that we would stand up for them.
So the Australian Greens stood up for their well-known principles, right? Er, well, back to Bob Brown:
When it comes to this particular piece of legislation, my colleagues and I have argued that substituting the word ‘a’ for the word ‘the’ is not a hugely important legal matter…
We are not going to oppose the legislation, if it strengthens the ability, in some way, to prosecute people who would carry out terrorism in this country.
The bill was then passed unanimously.
The Greens, like Labor and the Democrats, tried to excuse their support for the legislation by portraying it as trifling and insubstantial, ‘minor’ or ‘technical’. Indeed their chief complaint was that the government had needlessly recalled the Senate, obliging them to fly back to Canberra, while distracting media attention from WorkChoices legislation.
According to Senator Milne:
I do not believe it was necessary for the Senate to come back today to make this amendment. I believe the powers that the government is seeking are already there in the legislation that exists in this country…
If the threat was so serious the laws are already there… The action and the capacity are there…
This was all a little confusing. If the changes would grant no further powers and produce no discernible effect, why all the clamant talk of fascism and first-they-came-for-the-Jews stuff? What were all those words about ‘great and important’ rights and privileges, and a creeping police state?
Milne, for one, was so proud of her rhetorical stand that it soon featured — with no mention of the subsequent vote — on her website. Kerry Nettle claimed to perceive ‘no justification that I can see for why we should all be back here giving more powers to the security agencies.’
So which version was the truth?
On the one hand, if the legislation would give ‘the Prime Minister’s security agencies more power to lock people away’ at the expense of basic rights, the Greens senators could simply have opposed it.
After all, the party says it is committed to ‘standing up for what is right, not just what is easy’ and speaking ‘on behalf of those who wouldn’t otherwise get much of a say inside parliament’. Weren’t its MPs obliged to represent the enormous ‘public outpouring of opposition’?
On the other hand, suppose the amendments actually were trivial, providing powers ‘already there in the legislation’. If the Greens had, as they claimed, genuinely opposed those earlier measures, mere redundancy would now provide neither logical nor practical grounds for supporting the new bill.
At any rate, as the government’s explanatory digest showed, Coalition senators repeatedly emphasized, and outside commentators explained, the bill would widen the scope of criminal liability, and greatly expand the reach of security, intelligence and police agencies:
The effect of the amendments is to widen the scope of each offence…
The amendments will ensure the relevant offences will be available where a person is considering a range of activities that are still in formative stages and not advanced to the point of the details being decided upon…
[It] will not be necessary to establish that the person has settled on a particular target, time or date or other specific particulars of the action or threat of action said to constitute the terrorist act.
Stipulating that a terrorist offence could be committed even where ‘the thing’ wasn’t connected to ‘a specific terrorist act’ meant that — where some preliminary, general intention was shown — possession of certain items (say, a street directory, a camera, fertilizer, a mobile phone etc.) could form the basis of an offence.
In response to Greens questioning during parliamentary debate, the Justice Minister, Senator Ellison, made clear the novelty of these changes:
Under our criminal law, when you charge a person you have to have a particularity in relation to the charge…
You have to prove intention to do a particular act. In the security environment that we are dealing with, you may well have a situation where a number of people are doing things but you do not yet have the information which would lead you to identify a particular act. That is really what this is all about…
When you are dealing with security, you have to keep an eye on prevention of the act itself as well as bringing those who are guilty of the act to justice.
This was the logic of preventive war brought to the domestic sphere: the use of juridical force not just to punish or deter ‘terrorist conduct’ but to prevent it. A person could now be arrested before having formed any definite plan to commit a criminal act.
This was a licence for witch-hunts, frameups and arbitrary repression. The Greens could hardly claim ignorance.
Taking Bob Brown at his word, we must conclude that his party had no principled opposition to the changes.
Harmless velleities and pious media opportunities aside, the Greens are happy to collude in the Australian state elite’s multi-stage retrenchment of basic rights: ‘We are not going to oppose the legislation, if it strengthens the ability, in some way, to prosecute people who would carry out terrorism in this country.’