Duncan Kerr gave a quite impassioned talk to the Tasmanian Council for Civil
Liberties, in which he argued that fair and reasonable checks were in fact
being built in to the proposed anti-terrorism legislation. I’m not at all convinced of
this, in spite of what Duncan has to say, and in spite of my respect for his good
judgement.
The biggest reason for this is that although there are checks and balances built
into the system, they cannot truly protect the people from the state when there
is no transparency in the way they work. For a start, the judges, bureaucrats and
politicians who review the police and intelligence service actions do so on the
basis of information provided by those same services. It is therefore easy for each
of these levels of review to be drawn into the prejudices and the worldview of
the secret police. It’s really not clear that this is necessary , especially in the long
term. Police actions and the reasoning behind them (an arrest or a questioning or
a detention) performed under this legislation should be made available to the
public as soon as the ongoing investigation which prompts them, is completed.
For example if you take someone in for questioning because they know about an
Islamist group which is planning some sort of attack, then the documentation
under which the detention is sought should specify the time frame under which
that attack is expected, the time frame under which the information would be
current. Then the secrecy provisions should be limited by these times.
Most importantly, once the information is out of date then the fact that the
group is under investigation should not in itself be a reason for further secrecy.
If the police believe a group is planning to commit a specific crime, then it is
reasonable that they keep this knowledge secret from the public, during the
period that they believe that specific threat is imminent. This is a different matter
than trying to keep secret the fact that the group is under investigation where
there is no indication that any particular crime is about to be committed.
There is generally the view in the police and intelligence services that they need
to keep all aspects of an ongoing investigation secret. To my mind this leads to
a climate of fear and suspicion. Someone who is planning to commit a crime,
particularly of a terrorist nature (much as I think the word is seriously overused),
is naturally extremely secretive. Perhaps they might become more secretive if
they hear that an associate was questioned by the police, or perhaps they might
postpone or change their minds about committing the crime. The first seems
scarcely credible, the second not such a bad thing.
If the police obtain information that gives them reason to think that a crime is
about to be committed, they would have their presently proposed powers of
secrecy, while their investigation was ongoing. This is just as it is currently
proposed, except that on conclusion of their investigations they would have to
make the whole matter public, as well as any supporting evidence which does
not compromise other ongoing investigations. The public is able to judge that
their actions were reasonable, and tension in the community is defused. The
group under investigation is to some extent exonerated. There is nothing to
stop further investigation into future activities of the same group, but each
investigation must have a time limit and be made public at the earliest possible
moment.
Take a wiretap. The police say to a magistrate “we need to investigate such and
such a person for 4 weeks to see if they have contact with so and so about
illegal activity.” If at the end of four weeks they have found nothing which leads
them to suspect a conspiracy to commit a crime, then the existence and nature
of the wiretap should be made public. To me this gives a level of transparency
and public scrutiny which balances the loss of privacy and civil liberty involved
in the existence of the wiretap. The fact that person such and such knows that
his phone was tapped in the past may make him very careful of what he might
say on the phone, but it is foolish to suppose that he would not be careful
in any case if he is in fact planning criminal activity, and we know after four
weeks he does not say anything which leads us to think that he is a criminal, so
he is either not a criminal or he is already careful on the phone.
The recent deportation is a case in point. Unless it compromises an ongoing
investigation into a specific crime, there should be no reason the reasons for
the arrest and deportation could not be made public. If this reveals ASIO or AFP
interest in certain groups then all the better: such interest should either be
justified by documented evidence or it should be at a sufficiently low level as
to not require wiretaps or other privacy infringing techniques. In particular it
should not be founded on secret police prejudice against certain political
directions (such as green, peacenik, Islamist). Without better transparency all
that happens is that the reputation of ASIO and the Government into question.
Without this I don’t see any way of being sure that it’s not essentially a
political deportation.
Even with the best will in the world, and it’s not clear they have this, ASIO
and the AFP have a background and viewpoint which make them a poor judge of the
motivations and threat posed by certain people in the community. In particular
this applies to Green, peace, and eco activists, and Muslim groups, especially
if they are Islamist. (By the way there should be no bar on groups advocating
a government based on Sharia law any more than there should be a bar on
advocating a government based on the Bible, and either would be a disaster for
Australia.)
How often would we really lose out if completed criminal investigations which
made use of special powers were publicised after the fact? How much would we
gain in civil liberty, privacy, and focusing the secret police on real threats
rather than their prejudices and their masters political enemies? How much
would we also gain in the extra information which the secret police could get
in a climate in which they were trusted better by the population?