New Australian antiterror law upsets legal watchdogs

If you run a hotel or a car-hire business, or work in a bank in Australia, you could suddenly find yourself hauled in for questioning and detained indefinitely if an alleged terrorist stayed in your hotel, hired one of your cars, or borrowed some of your money.

Under a new law passed by Parliament in late June, Australia's domestic spy agency has won sweeping new powers to detain people for questioning for up to five years if they refuse to answer - or if they answer inaccurately.

As democratic governments expand their domestic policing capabilities, the new Australian law may have gone further than most in favor of security over civil liberties. Supporters argue the law will help curb further terrorist acts in the wake of last October's Bali nightclub bombings that killed 88 Australians. But the Australian Security Intelligence Organization (ASIO) law outrages some legal experts who say it violates democratic norms and is a step toward autocracy.

"Antiterrorism laws in other Western countries don't include the arrest of nonsuspects, but here they do," says the head of the Council for Civil Liberties, Cameron Murphy.

While the USA Patriot Act, which came into existence after Sept. 11, gives the US government the power to detain noncitizens indefinitely without charge, US citizens are protected by the Bill of Rights.

According to Mr. Murphy, the law is more draconian than anything in the United States, Canada, or Britain.

Australia has no bill of rights; rather, all civil and political rights in Australia are subject to interpretation in the courts according to the prevailing circumstances and case law.

The ASIO law also goes further than the US detention of the terrorist suspects at Guantánamo Bay, according to George Williams, a professor at the Center of Public Law, University of New South Wales. He points out that Australians can be arrested merely to collect information pertinent to a terrorism offense.

While the detainee is allowed to name a lawyer, ASIO has the power to veto the choice. Questioning can start without a lawyer present and the lawyer is bound to withhold information about questioning from the public.

If after seven days of initial questioning, the detainee is set free, as stipulated in the legislation, he can be called in again for another seven days if ASIO finds new evidence.

"The [ASIO law] is the most serious example of the erosion of human rights that the Parliament has seen for many years - as it's not related to the innocence or guilt of a person," says the secretary-general of the Law Council of Australia, Michael Lavarch.

But the Australian government says that stringent measures are necessary to safeguard the lives of the people.

"We must bolster our capabilities in order to detect terrorist activity, prevent it if possible and punish those responsible," says a spokeswoman for Australia's attorney general.

The opposition Labor Party agreed to the final draft after stalling the bill for 15 months in the Senate as it pushed for amendments to the original, tougher legislation.

"In the situation where there is a potential terrorist threat on public buildings or mass murders of people in Australia, these new powers for ASIO might help to prevent their actual occurrence," says John Faulkner, the shadow minister of state for home affairs.

"These are extreme measures - but necessary in the extraordinary times we live in," says Ross Babbage, a terrorism expert at the Australian National University.

A recent editorial in The Australian newspaper says, "The grim truth is that there are people who want to harm Australians, both at home and away. The new ASIO powers are designed to stop them."

In March this year, Newspoll showed that 62 percent preferred Prime Minister John Howard, as their leader - partly due to his show of leadership in matters of defense and security.

The head of ASIO, Dennis Richardson who told a parliamentary committee that the nation's intelligence system had failed in the Bali bomb attacks, has publicly supported the new legislation.

Critics argue that such laws are unnecessary in a country which has not had a terrorist attack since 1978 when an Indian religious sect planted a bomb in Sydney's Hilton Hotel.

There are also questions about the usefulness of such tough measures. Between 1987 and 1995, the Indian government used the Terrorism and Disruptive Activities (Prevention) Act, as a tool to fight trade unions, to detain Muslims, Sikhs, Dalits, and political opponents in areas of armed conflict. Under the law, more than 76,000 people were arrested without charge on suspicion of carrying out "antinational" activities. The conviction rate for those arrests was less than 1 percent.

"Such laws, in the long run, do more damage to democracy than any potential terrorist threat," Murphy says.

Mr. Babbage, however, says that abuse of the law in Australia is highly unlikely.

"There is a strong level of personal trust here which you might not find in other larger democracies - if anything aberrant was to happen, the government would blow the whistle," he says.