Without consent
September 24, 2005
Australia is heading down the same track as Northern Ireland and apartheid South Africa, jailing people without charge, write David Marr and Marian Wilkinson.
RARELY have state premiers met to consider an issue as sensitive as the one facing them next Tuesday: preventive detention. John Howard's latest strategy to stamp out terrorism involves house arrest, tagging, new powers to search and question, plus a brand new crime of "inciting violence against the community". But the big one on the list is preventive detention - giving state police power to imprison suspects without arrest, charge or trial.
Even before unveiling his plans to the press a fortnight ago, Howard faced sharp criticism from his backbenchers. Where was the detail? The party had been called to a special meeting to endorse his plans - and it did - but not before protests from backbenchers who later complained to the press that they had been "ambushed" and that the consultation was a "farce".
Little detail has emerged in the fortnight since. The premiers have not been given draft legislation to consider before their Tuesday meeting. The NSW Premier, Morris Iemma, told the Herald, "We've got a general outline; there's some statements of principles from the Commonwealth and what we await now is the detail."
The last fortnight has seen a divide open between the premiers - most of whom have pledged to support Howard's new regime if there are appropriate safeguards - and lawyers who have bagged the scheme, especially its centrepiece: preventive detention. If there are any who endorse the idea, they have been remarkably silent as legal body after legal body has weighed in against Howard's proposal.
Lawyers don't need the details to be worried. They know the grim history of preventive detention: its crucial role in shoring up apartheid, the unhappy history of "internment" in Northern Ireland - eventually abandoned as counter-productive - and its unsavoury use in Africa, India and South-East Asia.
"Look, nobody likes the fact that we have to do these things," said Howard a fortnight ago. "But I do believe that the suggestion that it represents a quasi-police state is really quite over the top."
This is what we know of his plan for preventive detention. It will come into force in an undefined "terrorism situation", and according to Howard the primary purpose of detaining suspects is "stopping further attacks and the destruction of evidence". To carry out the work, state police will be given - perhaps for the first time in the history of NSW - the power to jail suspects without warrant, without a charge and without any say so from the courts.
What suspects? Dr Helen Watchirs, the ACT Human Rights and Discrimination Commissioner, has analysed the material so far available to premiers and chief ministers. She concludes that police will need only to "reasonably suspect" someone has "just committed, might be committing or might be about to commit a terrorist offence". She advised the ACT's Chief Minister, Jon Stanhope: "These criteria are very broad."
What's the procedure? Watchirs says detention "must be reviewed by an independent person after 24 hours". This doesn't mean a trial. The "independent person" need not be a judge and the "review" doesn't mean police have to prove their case against the suspect. There is no guarantee of legal representation, or that detainees will be told the reasons for their detention.
Judges will be involved somewhere in the process. The Attorney-General, Philip Ruddock, told listeners of ABC Radio National: "The idea that preventive detention will proceed without judicial sanction flies in the face of the developed proposals that we are putting to the states and territories."
But what will the role of the judges be? What authority will they have?
The unhappy history of preventive detention in the 20th century - what has made it the strategy of choice for rounding up Catholics in Belfast, ANC sympathisers in South Africa and Japanese Americans in California during World War II - has always turned on the willingness of courts to sanction preventive detention while having no real power to set detainees free.
NSW is not demanding such judicial safeguards be built into the system. Iemma says he would be happy with an independent authority overseeing detention. "In NSW we've got a number: we've got an Integrity Commission, the ICAC, the Ombudsman," he says.
So what happens to detained suspects in prison? They can be interrogated. Iemma says the Commonwealth documents he has seen list as one purpose of detention "Providing information in relation to a terrorist attack".
Two years ago, the ASIO Act was amended to allow people to be detained for seven days for questioning. It was a radical step for Australian lawmakers to take. All sorts of safeguards were put in place: only so many hours of questioning by a retired judge. Howard's new proposals put those safeguards in question.
The secretary of the NSW Bar Association, Bob Toner, suspects the preventive-detention regime is actually aimed at broadening the grounds on which people can be detained and prolonging the period of time they can be held for questioning.
For how long? The mantra is "up to 14 days", but in the same breath Howard and Ruddock say the law will be modelled on British legislation. A couple of weeks ago, Tony Blair released a new anti-terrorism bill extending his 14-day period to three months.
Why is the Commonwealth having to ask the states for help? There is no mystery about this. Canberra needs to escape one of the few fundamental protections offered by the constitution: that only the courts can punish. As Ruddock told the ABC's Insiders: "Because of the way in which our constitution is drawn, the fact that a period of detention, particularly if it's a long period of detention, might be seen to be punitive means that it's not something you can impose administratively."
For Howard, Ruddock and many of the premiers, that's a quirky loophole in the constitution that has to be plugged to save Australia from terrorism. For the founding fathers, the High Court and a number of Liberal dissidents such as Petro Georgiou, it's a fundamental democratic principle that grew out of struggles going back to Magna Carta.
"Civil and political rights and freedoms did not come to us as in a single package, a gift from idealists in an ivory tower," Georgiou told a crowd at La Trobe University earlier this week. "They evolved out of the experiences of people who had lived through turbulent and violent times, through rebellion, revolution, civil war and religious conflict.
"The commitment to protecting individual rights was a rejection of the arbitrary use of executive power, which had been justified as essential to the security of the state and its citizens."
Howard and Ruddock insist that this time preventive detention powers will be carefully applied and never abused. It's an argument that must put a wry smile on the face of the Commonwealth Ombudsman, Professor John McMillan. Right now he's reviewing 201 cases where the Immigration Department appears to have detained the wrong people - of course, without trial.
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SMH, 24/9/05
