|
A betrayal of trust and liberty
By Malcolm Fraser
10/20/05 "The
Age" -- -- The Government and Opposition assume we
cannot fight terrorism while adhering to principles of democracy
and justice. Their folly is a grave threat to our freedom,
writes Malcolm Fraser.
TODAY'S world is preoccupied with terrorism. How we in
democracies respond is critical to the maintenance of our own
values and to the ideals of liberty. There is a danger that
Islam, which is essentially a peaceful religion, will be blamed
for the actions of terrorists and that we will be increasingly
divided by religion and race.
We need to understand that terrorism is as old as the human
race. The Crusaders from Britain who fought against Islam in the
Middle Ages; the Spanish Inquisition; the IRA and the Protestant
militias in Ireland all practised terrorism; all were
fundamentalist in their beliefs. The Chechens wanting
independence are terrorists. People in some parts of the
Philippines who want independence, were once called communists,
then freedom fighters and now terrorists. The Basques in Spain;
the Belgians in the Congo; the Portuguese and Spaniards in
Central and South America; the Red Army and the Red Brigades in
Germany and Italy in the late '70s and early '80s were all
terrorists.
Many believe the war in Iraq has provided a new motivation for
terrorists, to end the occupation of an Islamic country by an
infidel army. To understand that there are different causes of
terrorism is not to condone but is essential if we wish to
overcome and end terrorism.
Because civilisation as we know it was so nearly destroyed
during the Second World War, leaders of all major states
believed they must strive and work to achieve a better world.
The Universal Declaration of Human Rights was agreed in 1948. In
the years since, protocols and conventions established under it
were designed to build a law-based world. The International
Criminal Court finally came into force on July 1, 2002. It is
more than unfortunate that our response to terrorism has
reversed much of that progress and leaders in too many countries
do not seem to understand that that is happening
The ASIO legislation of 2002 underlines Australia's official
indifference to "due process" and to what until recently would
have been regarded as universally accepted Rule of Law. We're
the only democratic nation, I am advised, to legislate for the
detention of people whom the authorities do not suspect of any
wrongdoing or even wrong thought.
In Australia, any of us can be detained merely because
authorities believe we might know something that we don't even
know we know. The authorities do not have to believe we are
guilty of any crime, or are planning any crime, or have
consorted with any suspicious persons. How could such a law be
drafted by the Government and supported by the Labor opposition?
You can be detained for one week but then on a new warrant,
another and another and another week. Unless it is approved in
the original warrant - and why would ASIO do that? - you are not
allowed to contact your wife, your husband, your child, your
mother, your father and, of course, not a lawyer.
If you don't answer ASIO's questions satisfactorily, you can be
charged and subject to five years in jail. But the law is
reasonable, it goes on to say that if you don't know anything,
then it's not an offence not to tell ASIO anything. But you have
to prove you didn't know anything and so the "onus of proof" is
reversed.
You can be asked to produce a paper and if you don't, you also
go to jail on prosecution for five years but the law goes on to
say, being fair-minded again, if you don't have such a paper,
it's not an offence not to produce it but you have to prove that
you didn't have it. How do you prove you do not have something
that you do not even know exists. Again, "onus of proof" is
reversed.
If a journalist heard that you had been detained and sought to
report it, he would go to jail for five years. If a detained
person were released and talked to anyone about his or her
experiences, subject to prosecution, five years in jail.
This seems to be a law for secret behaviour by authorities, for
making somebody disappear. It is a law that one would expect in
tyrannical countries and not in Australia. Do we do nothing
about it because we believe it will not apply to ourselves? Do
we believe it is only going to apply to people of a different
religion who look a bit different?
United States authorities and others have, time and again,
denigrated those in Guantanamo Bay. We have been told they are
the worst of the worst, that they are terrible people, that they
do not deserve the normal protection of the law.
People who make such comments clearly do not understand or
believe in the Rule of Law as it has evolved through the ages.
They have taken such views because they believe those in
Guantanamo Bay and others are not "people" like ourselves. In a
different day and a different time, but within the memories of
many, we have heard those words before.
The presumption of innocence until proven guilty, the
presumption that all people should have access to "due process"
in a properly constituted legal system is no longer valid in
Australia. It is not reasonable just to blame the Government
alone for such laws. The Labor Party approved such laws. As a
consequence of the Government and the Opposition basically
agreeing, Australian law already provides for the abolition of
"due process", of habeas corpus and the presumption of
innocence. All this is already law.
Australian law, or lack of it, has already failed many
individuals and groups. Among these we can include: Aborigines;
people held in the Department of Immigration detention centres;
an Australian citizen deported; Australian citizens wrongly held
in detention centres without medical attention; a US citizen
deported without "due process" and an Australian citizen being
tried before a military tribunal. By the detention of the
innocent, by the questioning of people known to be innocent by
the authorities, by the right confirmed by the High Court with a
majority of four to three, to keep a failed asylum seeker in
jail for the term of his natural life, if he could not be
returned to his land of origin.
Authorities in Australia already have the capacity for the
exercise of extreme and arbitrary power without adequate
judicial safeguards. Much of this involves the gravest failure
of administrative and ministerial responsibilities. As shown in
the Palmer and Comrie reports, the Department of Immigration has
been at the centre of much of it. Two ministers have been in
charge, neither minister is responsible. As far as one can tell,
nobody has been held accountable. The people involved appear not
to have mattered to the administration or to the Government.
Australia now has new proposals in front of it providing even
greater power to the police and to the Government. Attention
should, in particular, be turned to those provisions that allow
for "preventive detention" and the use of "control orders" to
arrest and to limit and monitor the activities of individuals.
No cogent case has been made for the expansion of these powers,
except a general one that it is necessary to fight terrorism. It
would be reasonable to ask why, it would be reasonable to expect
a considered answer. Do we really believe these powers will be
effective in the fight against terrorism, or do we believe that
the powers themselves are likely to lead to a sense of grievance
and of alienation? These are powers whose breadth and arbitrary
nature, with lack of judicial oversight, should not exist in any
democratic country. If one says that they will not be abused, I
do not agree. If arbitrary power exists it will be abused.
All this has happened in a country which has not experienced a
significant terrorist incident for many years. What would be our
Government's reaction if this great city were tied up and
disorganised by terrorist attacks similar to those which
recently occurred in London?
The Government is really saying on these issues, trust us, but
no part of the history of the Coalition's invasion and
occupation of Iraq gives any member of that coalition the right
to say on these issues: "Trust us." We were told there were
weapons of mass destruction. There weren't.
More recently published British cabinet papers have made it
clear that President George Bush had made the decision to go to
war seven or eight months before the American people were told.
More particularly, after the Tampa, after the children
overboard, the experience and treatment of asylum seekers, the
abandonment of Guantanamo prisoner David Hicks, all suggest that
any right to trust has been long destroyed. Concerning the Tampa
and children overboard, the Government knew they were playing to
the more fearful and conservative elements in the Australian
community and with great success. The Government also knows in
relation to terrorism that the public is concerned, even fearful
and can be made more fearful.
It may be brilliant politics but will such laws make Australia
secure? By its actions, the Government has long abandoned and
lost the middle ground. The rule of law and "due process" has
been set aside.
These new proposals should be opposed. No strong case has been
made that they will be effective in the fight against terrorism.
There are no real safeguards. There is no adequate judicial
review.
The laws should be opposed because the process itself is
seriously flawed. Instead of wide-ranging discussion the
Government has sought to nobble the field in secret and to
prevent debate.
The Government and the Labor Party have both assumed that we
cannot fight terrorism and adhere to the basic principles of
justice and democracy. They have assumed that certain people are
outside the law and do not deserve justice. They are saying
"Trust us" when they have given us every reason not to trust
them on peace and war and on security for our people.
If we stand silent in the face of discrimination and in
violation of the basic principles of humanity, then we betray
our own principles and our way of life. I regret that many
believe they must throw basic rights overboard to defend those
same rights. Such views are wrong and will make it harder to
overcome terrorism.
Malcolm Fraser was prime minister of Aaustralia from 1975 to
1983. This is part of the Stephen Murray-Smith memorial lecture
last night at the State Library of Victoria.
Copyright © 2005. The Age Company Ltd.
Translate
this page
(In accordance with Title 17
U.S.C. Section 107, this material is distributed without profit to
those who have expressed a prior interest in receiving the
included information for research and educational purposes.
Information Clearing House has no affiliation whatsoever with the
originator of this article nor is Information Clearing House
endorsed or sponsored by the originator.) |
