A talk to the Melbourne Writer’s Festival
Storey Hall, 31 August 2007
Clive Hamilton
Franz Kafka once wrote that “it is an extremely painful thing to be ruled by laws one
does not know”.1
The story in which Kafka made this observation told of an imaginary
kingdom ruled by secretive nobles who kept knowledge of the law to themselves. But I
cannot help thinking that Australians are increasingly ruled by laws we do not know or
understand.
I am thinking particularly of the new anti-terrorism laws passed by federal and state
parliaments. Who of us feels confident that we understand the anti-terrorism laws and
how they might affect us? I certainly don’t understand them, and I follow these things
quite closely. I sometimes think that there are things I might do, such as having an
outspoken opinion on terrorism or the security services, which could see police with guns
come crashing through my door. I could go to the statute books and read the laws, but I
don’t think that would be much help, because so much in them is undefined and left to
the police and security services to interpret as they will, or in response to government
direction.
The case of Dr Mohamed Haneef has left many of us feeling disconcerted and worried
that the rule of law is under threat. As far as we can tell he did nothing more than give an
old SIM card to a relative. He may very well not have known or suspected that the
relative knew someone who subsequently committed an act of terrorism. The public has
been shown no evidence he has broken any law, despite the Government’s attempts to
blacken his name with highly selective quotations from some emails, ones that on the
face of it lend themselves to perfectly innocent explanation.
The secrecy that has enshrouded the claims against Dr Haneef, and the way in which the
case against him was deliberately distorted by the Government and the police in the
media, must make us all wonder whether we too at some point could find ourselves
locked up for no good reason and without the usual protections.
Anyone who is politically active in Australia, and especially if they are critical of the
Federal Government, must live with a low-level anxiety about what might happen to
them or their families if some unknown threshold is crossed. And it is not just the
politically active: just to know someone who might be could land you in hot water.
Here are some of those indistinct thresholds that come to mind.
What might happen to me if I send an email to a supporter of the Tamil Tigers? Is that an
illegal organisation? Are those who spoke out against the treatment of Dr Haneef now
under surveillance? What would happen if I wanted to find out what al-Qaeda really
stands for? If I go searching on the internet will an alarm bell ring in a high-tech
basement somewhere? Should we hesitate before we use the word ‘bomb’ when speaking
to someone on the telephone? What could happen to my son if he joined a demonstration
and some agitators at the front jostled police? Is he going to be dragged out and assaulted
by men who refuse to identify themselves – something that has actually happened in the
last year?
Recently, a former ASIO agent asked me to consider for publication a paper he had
written that was critical of the anti-terrorism laws. My initial reaction was positive,
particularly if he could shed new light on how the laws were being misused. But then I
found myself hoping that there would be nothing new or controversial in the paper
because I would almost certainly have the police and security services barging in to my
offices, in the same way that they spent days camped in the offices of Melbourne
publisher Black Inc as it prepared to publish Andrew Wilkie’s book.
Of course, the tabloid commentators and shock jocks will declare that if you haven’t done
anything wrong there is nothing to worry about. But the point is that we don’t know
whether many things we might do are illegal or might make us subject to suspicion. The
laws are not transparent and are no longer in alignment with our natural sense of what is
right and wrong.
The laws remind us of Walter Benjamin’s distinction between “the foreseeable
punishment that accompanies the disobedience of the law, and the harsh, unpredictable,
and generally violent ‘retribution’ that comes about for transgressing secret or unwritten
rules that are unknown to us”.2 Benjamin, a Jew persecuted by the Nazis, knew what it
was like to live in trepidation of an uncertain fate.
None of us has to study the Crimes Act to know that killing someone is wrong and
punishable, but in today’s environment, conscience can no longer be our guide. The sort
of unpredictable retribution Benjamin spoke of certainly seems to have been the fate of
Dr Haneef.
More so than ever before in Australia, the police are now empowered, if not in law then
by implicit political fiat, to interrogate, intimidate and even assault people innocent of
any crime but suspected of associating with the wrong people. They can admonish and
warn off citizens, threatening them with unstated but implicitly dire consequences should
they, for example, attend a protest at the APEC meeting or a demonstration against
President Bush.
When this happens we are deprived of our rights. In an observation that now has a
chilling resonance in our country, the American academic Guillermina Seri wrote:
Citizen encounters with the police open up a territory of unpredictability that blurs
the distinction between written and secret laws, normalcy and exception. They are
ultimately regulated by unwritten norms that those in charge of policing
administer through their discretionary power.3
In his recent Quarterly Essay, David Marr tells the disturbing story of the treatment of a
number of young men in Sydney who were arrested for events that occurred at the G20
demonstration last year.4 Squads of heavily armed police, some from counter-terrorism
units, arrived at dawn, in one case kicking the door down. Their houses were turned
upside down. One told of how he had previously been snatched off the streets of
Melbourne by eight men who did not identify themselves. He claims he was punched and
kicked and subsequently charged as one of those who allegedly occupied an office
building during the G20 demonstration.
The police warned the demonstrators to stay away from protests and not to go anywhere
near APEC. Each of these young people – “middle-class boys” as one observer called
them – was severely shaken up. If the intention was to frighten them out of their political
engagement then it was very effective; who would blame these young people for
desisting?
Although breaking in to offices and throwing things at police are clearly illegal, anyone
contemplating going to a protest nowadays must be worried that simply being there may
have serious consequences. They know they will be photographed by security agents and
they may well have a police file kept on them, merely for exercising their democratic
rights. We are in danger of returning to the dark days of the fifties and sixties when
ASIO, armed with excessive powers, carried out surveillance of anyone regarded as
vaguely left-wing, including peace groups, anti-war activists and women’s groups.
The security organisations were largely unaccountable, at least to any body that might
take a critical view of their activities and attempt to rein them in. We have subsequently
learned that ASIO had a paranoid culture that made them jump at shadows. Most
operatives, including the leadership, had crude political views and their reports on the
activities of individuals and groups judged a threat were often laughable, in retrospect at
least.
These are the lessons of history, yet who today could have confidence that the current
Federal Government and its agencies will implement the anti-terror laws fairly and with
due attention to questions of natural justice?
Like many others, for some time I took comfort from the fact that the Commissioner of
the Australian Federal Police, Mick Keelty, appeared to be his own man, one committed
to the fair and proper application of the laws. But after the Haneef case, it seems to me
that the AFP’s reputation for independence and competence has collapsed and the force
has become in some respects a political arm of the Government. I no longer have
confidence in Mr Keelty’s independence and that makes me very apprehensive.
Parliamentary scrutiny of the security services has gone from minimal to zero with the
Government’s majority in the Senate and the brow-beating of any potential Coalition
dissenters.
If neither the Government, the Parliament, nor the leadership of the security services is
able or willing to exercise discipline over the implementation of the laws, and the courts
take an increasingly restricted view of their role, what protections remain for Australian
citizens?
There is no doubt that we face a real danger of terrorist violence in Australia and
heightened security measures are essential for dealing with this situation. But the power
and discretion that the anti-terrorism laws give to the Government, the police and the
security services have created a climate of fear, and not just among people who might be
worried about whether their actions are lawful. Frankly, I am more afraid of being
innocently caught up in the new security laws than I am of being harmed by terrorist
bombs.
The Howard Government exercises unprecedented power in this country. It is unaffected
by many of the checks and balances that have traditionally constrained executive power
and has shown itself willing to use its power ruthlessly. We desperately need those
checks and balances to be strengthened; otherwise the terrorists really will have won.
References
1 Franz Kafka, The Problem of Our Laws.
2 Quoted by Guillermina S. Seri “Police Discretion as Unwritten Law: Governing the State of Exception” from Benjamin, Walter. “Critique of Violence”. Selected Writings Volume 1 1913-1926. (Bullock, Marcus and Michael W. Jennings ed) The Belknap Press of Harvard University Press. 1996.
3 Ibid. Seri teaches at Union College
4 David Marr, “His Master’s Voice: The corruption of public debate under Howard”, Quarterly Essay, Issue 26, 2007.