from Crikey .....

National Security Legislation: worst discussion paper ever

Canberra correspondent Bernard Keane writes:

A short methodological note on the National Security Legislation Discussion Paper released last week: this is the worst discussion paper I've ever seen, and I've seen a few. No executive summary, not structure, minimal discussion, just a whole pile of amendments and barebones commentary.

Attorney-General Robert McClelland says the paper was held over until after the Melbourne terrorism raids, but it looks like a rush job.

There's also the faintly sinister insistence - 54 times - that "This Page Is Intentionally Blank". There have been some significant omissions, or one of McClelland's donors is a paper producer. You be the judge.

Anyway, on to the substance.

The predominant tone of media coverage of the paper - Guy Rundle's splendid take last week excepted - is that of "balance". And true, there are some positives - the reduction of the investigation period to seven days and twenty hours; the removal of the outdated sedition offence; the appellability of bail decisions; the ability of humanitarian organisations to obtain authorisations about the support they provide in areas where terrorism may occur.

But Australia's counter-terrorism laws remain draconian and provide for minimal oversight of their operation and this paper does little to correct that.

While the reforms propose providing Parliamentary Committee oversight of the Australian Federal Police, they remove the role of overseeing and reviewing national security legislation from the Parliamentary Committee on Intelligence and Security (the new name for the Committee that oversees ASIO, ASIS and the DSD). Instead, the Government announced last year -- in a release dropped into obscurity on 23 December - that a "National Security Monitor" would be established to review national security legislation.

Coincidental with the release of the national security paper, a Senate inquiry was held into the separate bill establishing the "National Security Monitor" last week. The "Monitor" will be a part-time position, supported by a two-person team, to oversee all national security legislation, carry out Government references - the Government has foreshadowed two already - and any self-initiated inquiries the Monitor decides are appropriate.

It amounts to a substantial diminution of parliamentary oversight of a legislative framework tilted heavily against individual rights. Parliamentary oversight is critical to the chances of keeping at least some external accountability in an area where public and press accountability is avoided by claims of national security.

At least, however, the committee overseeing the AFP - which will be the same joint committee that oversees the Australian Crime Commission -- will have minor party representation. The Intelligence and Security committee, whose members are nominated by the Government, has no members from outside the major parties, although the value added by Steve Fielding, the minor party representative on the ACC Committee, must be wondered at.

And while the bulk of the discussion paper is given over to a series of amendments to simplify and clarify the operation of the public interest immunity in trials of those charged with terrorist offences - because the Attorney-General plainly does not have enough power to intervene to gag witnesses and lawyers in court proceedings - the paper is silent on the absurdity that is restrictions on an individual's right to alert their family or legal representatives that they have been interned by security agencies.

This Kafkaesque nonsense seems to have been a particular pleasure of the Howard Government, which gave a similar power to Australia's own Stasi, the Building and Construction Commission, which has prevented even passers-by hauled before its Star Chamber by accident from revealing their interrogation. In crafting the Anti-Terrorism Act No.2 2005, the Howard Government even offered a formula for those interned by security agencies to provide to their families: "I am safe but unable to be contacted for the time being."

Which would of course serve as a perfect signal for any terrorist outfit that an individual had been abducted by a security agency -- thereby defeating the entire purpose of keeping internees silent.

Abduction was of course the fate of Izhar Ul-Haque, the Sydney man kidnapped and falsely imprisoned by ASIO and AFP officers in November 2003. The ASIO officers involved in that little escapade continue to enjoy the cowardly shelter of anonymity and there has been no calling to account of either them or their superiors. Nor have they been charged with the range of criminal offences they would appear to have committed in apprehending Ul-Haque, interrogating him and depriving him of his liberty on the basis of a search warrant.

The role of the Howard Government in encouraging authorities, as one AFP officer put it, to charge "as many suspects as possible" has also never been appropriately investigated.

Instead, the paper seems to pursue a "mission creep" expansion of terrorism, absurdly proposing to embrace "psychological harm" (one envisages bearded Islamofascists in a darkened mosque plotting to cause maximum "psychological damage", right?) and suggesting an extension of the link between terrorism and the incitement of violence against individuals or groups. Inciting violence is already a crime under ordinary criminal laws.

Slapping the label of "terrorism" on it adds nothing but the opportunity to undermine the rights of individuals.

Our current anti-terrorism laws don't need "balance", they need fundamental reform. The Government has proposed only a limited period -- until 25 September -- for comment on this dense, 400pp document. But it's not what's in the document that needs the most discussion -- it's what the Attorney-General has omitted, which is the reversal of the most substantial assault on basic rights in a generation.

from Crikey ....

Untangling the laws of terror

Senator Scott Ludlam, Australian Greens spokesperson on legal affairs, writes:

It's rare to hear the phrase "war on terror" these days -- it has been seemingly purged from the official lexicon as the superficial certainty of the Bush/Howard years gives way to darker and more ambiguous terrain.

Australia is still a nation at war: one and a half thousand troops on the ground in Afghanistan, backing NATO's installation of a brittle democracy in a violent failed state where the distinctions between friend and terrorist change by the day.

But something is going on at home as well: a determined, coordinated expansion of the internal security estate that is permanently blurring the boundaries between institutions of defence, intelligence and policing. Some of the thinking is laid bare in the most recent defence white paper: a highly militarised Australia stepping up to meet the threats of nameless Asian aggressors, while an expanded web of domestic security agencies wage an unseen war against the enemy within.

The forthcoming counter-terrorism white paper will no doubt provide a discrete glimpse into the workings of this secret war on terror that no longer has a name. But we have some flesh on the bones already. We know that spy agency ASIO will have doubled in size over four years and has a half-billion dollar headquarters under construction next to the defence complex in Canberra. We know that Australians are, per capita, 23 times more likely to have their phone calls intercepted than United States citizens.

We know that a tight feedback loop of mutual self interest binds Ministers, law enforcement agencies and favoured media outlets who somehow manage to have photographers and journalists in place as raids are occurring, or in a recent celebrated example have the story rolling off the presses before the doors have even been kicked in.

The most telling sign of the Rudd Government's intentions are that every word of the Howard Government's complex and unwieldy terror laws are still in place, nearly four years after they were forced through the Senate in one fevered afternoon. It has taken two years to get a look at the Governments' proposed "reforms", which arrived last week in the form of a 400 page discussion paper that looks very much as though it was rushed out the door in time to catch the aftershocks of the raids in Melbourne.

The debate since then has had a peculiarly unfocused character. The Australian editorialised that the Attorney General was softening the laws. The Fairfax media reported that the laws were being toughened up. The Coalition accuses the Government of being "soft on terror" and "draconian" at the same time.

In reality, the laws are being refined, tuned, the sharp edges knocked off and the subtle underpinnings embedded more deeply in the legal architecture that guides the work of the intelligence and law enforcement communities. The Australian Federal Police will be able to declare an emergency and then enter premises without a warrant and conduct searches essentially free of judicial oversight.

Terror offences will quietly expand to encompass racial violence and "psychological harm". The provisions in the Crimes Act that were used to detain Dr Mohammed Haneef for 11 days while the Government frantically worked out whether to prosecute or deport him will remain, although suspects will only be allowed to be held and interrogated without charge for an eight day week.

The Government has said that this is about "achieving the right balance between strong laws that protect our safety whilst preserving the democratic rights that protect our freedoms." It is here that the argument rests most uneasily.

If these "strong laws" really were protecting our safety, they would be hard to argue with. The Australian Greens are a party founded on nonviolence. We condemn acts and threats of politically motivated violence without reservation. The question is whether the continued ratcheting up of the security state actually makes us safer, or whether we should be looking elsewhere for the kind of "security" that seems so fragile in this complicated age.

Because they operate behind a firewall of operational secrecy, the Australian public has very little idea to what degree the rapidly proliferating acronym soup of intelligence, defence and law enforcement agencies are actually making us safer. When mistakes do spill into the public domain -- as they did with Dr Haneef, Izhar Ul-Haque or Jack Thomas, they shake public confidence not just in the agencies concerned but in the whole assumption that larger and better resourced secret police are the key to a secure Australia.

No doubt these agencies are staffed with talented and motivated individuals, some of them doing dangerous work to pre-empt violent crimes, their only reward the absence of some half-formed horror. But this is no reason for centuries of hard-fought legal protections drawn up to protect each of us from abuse of state power to be so casually eroded.

The long-awaited reviewer of the terror laws looks like it will be a well qualified part-timer supported by two staffers in the PM's office. I wish them well -- they will barely have time to come to grips with the tangled legacy of Prime Minister Howard's war on terror before the next tranche from Prime Minister Rudd hits the table. Who or what we're at war with now is an open question.

An Australian Federal Police boast, on the ABC's Four Corners program, about officers breaking up an underground hacker forum, has backfired after hackers broke into a federal police computer system.

Security consultants say police appear to have been using the computer as a honeypot to collect information on members of the forum but the scheme came undone after the officers forgot to set a password.

Last Wednesday, federal police officers in co-operation with Victoria Police executed a search warrant on premises in Brighton, Melbourne, connected to the administrator of an underground hacking forum, r00t-y0u.org, which had about 5000 members.

Many details of the investigation were revealed for the first time on Four Corners last night.

After the raid, the federal police covertly assumed control of the forum and began using it to gather evidence about members.

http://www.smh.com.au/technology/security/hackers-break-into-police-computer-as-sting-backfires-20090818-eohc.html?source=cmailer