The State and Terror in the New Era

To witness the collapse of the World Trade Centre — brutal, unprecedented and broadcast live — was to be propelled towards reaction. The fear, insecurity and uncertainty, captured on camera and replayed again and again to an ever-more alarmed public, became part of a seamless rush to action. In this, the inevitable call to arms, and indeed individuals’ demands for it, can be seen as a personal resolution, a means of regaining control of an otherwise uncontrollable and incomprehensible situation. Yet it is precisely these situations that call, not for precipitate action but for reflection, not for vengeance or retribution but for justice. They call, above all, in the midst of this chaos, for the retention of the rule of law.

The use of the term ‘terrorism’ itself exacerbates these aspects through highlighting the fear and the terror which all acts of violence create. ‘Terrorism’ and ‘terror’ carry with them such overwhelming moral revulsion that complex questions of causation, which must eventually be addressed, are neatly averted. The description of these events, for example, as ‘terrorist acts against all freedom-loving people everywhere in the world’ is an effective closure. There is no way in to negotiate this statement, it allows us no possibility of analysis, no means of understanding what is a far more complex reality. From this stems the continuing declamation of those who seek some recognition of causative factors, by crudely equating this with condoning the attacks.

The language of ‘terrorism’ which has become so commonplace recently, is essentially unsatisfying for all of these reasons. ‘A cliché in search of a meaning’ in Christopher Hitchens’ view, a debasement of language, destructive of understanding. There is no doubt that the key term ‘terrorism’ is vague, impossible to define and imbued with unstated assumptions of morality and of legitimacy. In some respects the use of the terminology tells us more about the speaking position of those using it than it does about the events being described by it. It is somehow surreal to watch the various news bulletins with backdrops saying ‘WAR AGAINST TERROR’ or ‘WAR ON TERROR’ — it is just not a possible construction because, on any reading, war is terror. But the linguistic and political imprecision surrounding the very notion of ‘the war on terror’ contains within it the seeds for its unending expansion internationally — like a hydra, of the many heads of which the alleged culprit Osama Bin Laden is but one. In this way, the language of ‘terrorism’ functions closer to pathology than to politics, as in the description of the perpetrators of these recent attacks as having ‘an evil hatred of modernity’. Once again, the crucial question of causation has been answered in the description itself; it lies in the realm of the psychopathic, not the material. Yet these difficult questions are precisely what must be asked and are precisely what we must feel able to ask. Without them we cannot devise an appropriate response.

It is not uncommon in our history for a crisis in security to slide into an authoritarianism in which the space for acceptable political discourse and action becomes delimited, perhaps even proscribed. This can arise from several quarters, most overtly from institutional changes to security powers which I want to discuss shortly, but also from more generalised attempts to create an internal cohesion (as is currently occurring in America) through the denial of popular legitimacy to expressions of dissent from it. We have seen in recent weeks for instance, the dismissal of journalists in America who were critical of their president’s actions, examples of racial violence, religious violence and incitement and the reduction of ‘Islam’ to ‘terrorism’ — and this despite the self-description of the campaign as ‘a fight for freedom’.

I have been astonished at the ease with which established political and legal protections, central to any notion of the rule of law, have over the last few weeks been thrown out the window like dust, thereby undermining the very structures we are seeking to protect. Not least are the once sacrosanct notions of trial by jury, innocent until proven guilty and equality before the law, which have all, in one swoop, been dispensed with in the conduct of this ‘war on terror’. This bizarre dichotomy has left many wondering exactly what it is we are trying to protect. In such a climate, demands for increased security measures, even those which cut across established legal and political protections, may be accepted, even welcomed. It was with unseemly haste therefore, that the Attorney-General Daryl Williams announced, within weeks of the attacks, proposals for a major restructuring and expansion of ASIO’s powers.

When the Labor Prime Minister Ben Chifley established ASIO in 1949, he did so with great reluctance and under political duress in an intense Cold War atmosphere. Chifley intended that ASIO would confine its activities within the narrow bounds of defence-related activities rather than the pervasive security surveillance of domestic political activities. As John Burton, Chifley’s Departmental Head, described it:

Every step was taken to ensure against the development of a situation in which there would be throughout the community ‘spies, pimps and informers’.

To this end Chifley appointed a judge, Justice Reed from the South Australian Supreme Court, as the first Director-General of ASIO. This concern to make the protection of civil and political liberties paramount in ASIO’s operations lasted barely a year when, with the election of Robert Menzies as Prime Minister, Reed was replaced by the former head of military intelligence Brigadier Charles Spry. This marked the beginning of ASIO’s widespread approach to political surveillance which lasted until a series of revelations of its excesses in the mid-1970s led to tighter controls.

Over the Cold War dominated decades which followed, ASIO’s surveillance activities strayed into areas which would now appear faintly ludicrous were their protection not so central to the maintenance of a healthy and diverse political sphere. We now know that ASIO meticulously retained files on church meetings for peace, on the New Housewives Association, the Fellowship of Australian Writers, anti-war campaigners and on countless Labor Party politicians including Don Dunstan, Jim Cairns and Lionel Murphy. ASIO’s records reveal a marked politicisation in its understanding of the key term of the time — ‘subversion’. Of greater significance and damage to those unwittingly placed under surveillance were ASIO links with key sections of the media which provided a means of publishing highly damaging and frequently spurious intelligence gossip about key political figures. This was revealed through Justice Hope’s Royal Commission in 1977, and was the one aspect of ASIO’s activities which Hope criticised roundly.

Nevertheless, ASIO did maintain a formal distinction between its surveillance activities and the law enforcement focus of state police forces. To do otherwise — to allow those who collect intelligence to also be those who initiate prosecutions — would be to criminalise those on whom such intelligence is maintained (in secret, without review, with no knowledge of its source, its veracity nor its purpose). The Howard Government’s proposals establish a new orthodoxy in ASIO’s activities. For the first time in its history, ASIO will be able to move directly into law enforcement. According to an AAP news report, ASIO’s agents will be able to detain and question ‘terrorist suspects’ for forty-eight hours without charge. Even more alarming is the Attorney-General’s proposal that ASIO agents will be able ‘to question people not themselves suspected of terrorist activity‘ about their knowledge, not of terrorist activity, but of ‘politically motivated violence’. Already these extreme measures, argued for on the basis of the extreme case of terrorism, have broadened into the far-reaching notion of ‘politically motivated violence’. Failure to answer questions will result in five years imprisonment. The new powers proposed by the Attorney-General include specified offences of terrorism subject to life imprisonment. Again, these offences are broadly defined, including ‘threats of violent attacks intended to advance a political cause … which endanger Commonwealth interests’. Clearly, anti-globalisation, anti-waterfront reform — indeed almost all protests — readily fall within this catch-all terminology.

The imprecision over the language of ‘terrorism’ and its application, leads to concerns that counter-terrorist security measures will be broadly targetted in ways that are neither appropriate nor efficient, ways that may impinge upon legitimate political agitation and dissent. Historically, such concerns are not misplaced. It is in some ways fitting that we are gathered here at the Arena Centre almost exactly fifty years since the final defeat of Prime Minister Robert Menzies’ several attempts to pass the Communist Party Dissolution Act (1950) which would have outlawed political organisations by executive decree, at a time of presumed international and national crisis against the then scourge of communism. I commend to you the recently released collection, edited by Paul Strangio and Peter Love, Arguing the Cold War, which reassesses this time and this extraordinary Bill, and the referendum which followed its invalidation by the High Court of Australia, which has somehow slipped through the critical gaze of history.

It is instructive to look back at this time, which reveals much of what remains an ongoing security concern to limit acceptable political behaviour, to limit democratic practice. Specifically, the Communist Party Dissolution Act allowed for an executive finding of guilt not found since the days of the Star Chamber, reversed the onus of proof and removed even trial by jury in these matters. As Labor Leader Ben Chifley argued in Parliament:

[The Bill] strikes at the very heart of justice. It opens the door for the liar, the perjurer and the pimp to make charges and damn men’s reputations and to do so in secret without having either to substantiate or prove any charges they might make.

In all of these aspects the Communist Party Dissolution Act did away with established protections before the law, the ‘great principles of justice’ as the former High Court Justice Lionel Murphy called them, which had been developed over generations, not as obstacles to conviction but as a means of achieving justice. Such fundamental denials of freedom of political association and natural justice were unprecedented anywhere in the Western world during peace-time with the exception, as Justice Michael Kirby has pointed out, of the apartheid regime in South Africa, the provisions of whose Suppression of Communism Act (1950) it drew upon freely.

Following the passage of the Act by Parliament, ten unions challenged its constitutionality before the High Court led by the Deputy Leader of the Labor Party, Dr H.V. Evatt. Evatt, the first elected President of the United Nations General Assembly, a ‘libertarian warrior’ in Justice Michael Kirby’s description, believed passionately that this Act was not only unconstitutional but profoundly anti-democratic. In a 6:1 decision, Chief Justice Latham dissenting, the High Court ruled in Evatt’s favour. It was a judgement which continues to protect all of us from the arbitrary abuse of executive power. Professor George Williams has described it as ‘truly an “epochal” decision, probably the most important ever rendered by the Court’ which confirmed that the High Court was ‘not prepared to see its judicial functions usurped by Parliament’. The separation of powers, the established legal protections of trial by jury, the presumption of innocence, and of course judicial review itself, are surely all there precisely because they protect citizens and our civil liberties from arbitrary executive power. The civil liberties concerns were clear in the Justices’ questions during the course of the case: Justice Williams asked:

Does this mean that Parliament could say that the existence of John Smith, an ordinary citizen, is a menace to the security of Australia and require that he be shot at dawn?

Justice Kitto, also during argument:

You cannot have punishment that is preventive. You can’t remove his tongue to stop him speaking against you. That is wide open to a totalitarian state.

Following his failure at the High Court, Menzies then turned to the only avenue remaining to him — a referendum to amend the Constitution itself. As the opinion polls showed a gradual shift away from an initial 73 per cent support for the proposal, Evatt maintained an equal determination to defeat it. That Evatt succeeded, by the smallest of percentages, has been described by Justice Michael Kirby as ‘Evatt’s greatest contribution to liberty in his own country’, demanding as it undoubtedly did, ‘the sacrifice of personal ambition to the defence of basic constitutional rights’. For Evatt’s final victory with the defeat of the referendum also ensure his and the Australian Labor Party’s electoral defeat for years to come. Yet Evatt anticipated and was willing to accept this outcome in the name of what he saw as a more insistent need:

I regard the result as more important than half a dozen general elections. The consequences of a mistaken vote in an election verdict can be retrieved. But an error of judgement in this constitutional alteration would tend to destroy the whole democratic fabric of justice and liberty.

Today we face a different type of threat to civil liberties, less momentous, thanks to Evatt’s insistence on the unconstitutionality of the powers to proscribe organisations, but nonetheless significant. Nor do we have amongst our current political leaders a unique intellect such as Evatt’s, not only able but also willing to sacrifice personal ambition for political and legal principle. Yet, in my view, the gradual, subtle shift towards a universalised surveillance is critical. An indication of the breadth which ASIO gives to its interpretation of its ‘special powers’ can be gauged from the ‘Church of Scientology’ case in 1983. The Church sued the Director-General of ASIO, arguing that the organisation had continued to characterise the Church as a security risk, as subversive; that it and its members were subject to surveillance and intelligence collection even after ASIO had determined that it was not in fact a security risk, thereby constituting an improper use of ASIO’s powers. The judgement is breathtaking. A majority of the justices found that ASIO was not bound to cease to obtain intelligence about an individual even if it had been established that the individual was not a security risk — accepting the argument put by ASIO’s counsel that an individual’s future activities may render presently innocuous behaviour ‘relevant to security’. In the words of the Australian Law Journal, ‘on this analysis no one in Australia would be exempt from surveillance by ASIO’.

Justice Lionel Murphy, of course, dissented. In his minority judgement, Murphy noted:

Characteristically, from time to time they [security organisations] exceed, and misuse, their powers. The expectation that they will do so, creates a climate of apprehension and an inhibition of lawful political activity even at the highest levels of government.

Surveillance on this scale allows ultimately for the pre-emptive control of political conflict and dissent, which may or may not protect individual citizens but which certainly protects the state itself. Justice Dixon noted precisely this tendency of the state to protect itself through an executive superseding of democratic institutional power, in his powerful judgement in the Communist Party Dissolution case:

History, and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power. Forms of government may need protection from dangers likely to arise from within the institutions to be protected … [T]he power to legislate for the protection of an existing form of government ought not to be based on a conception … adequate only to assist those holding power to resist or suppress obstruction or opposition or attempts to displace them or the form of government they defend.

The Italian theorist Luigi Bonanate has suggested that ‘a society acquainted with terrorism is a blocked one’; that ‘terrorism unmasks a democracy which is only formal’. If we are able to consider that terrorism stems from a failure of democratic practice, from an absence of a political space beyond a narrow margin of permissible action, then perhaps what is needed is not yet more constraints on effective political participation but a more inclusive politics, not less democracy but more. The current climate of crisis and uncertainty does not inspire such political reflection, nor encourage such outcomes. Our challenge now is to hold steadfastly to our civic traditions, to the rule of law, to equality before the law; and to defend the rights of suspects even in the face of such assaults. Above all, we need to encourage a healthy dynamism and a welcome diversity in Australian politics.

Jenny Hocking is Head of the National Key Centre for Australian Studies at Monash University.

Support Arena

Independent publications and critical thought are more important than ever. Arena has never relied on or received government funding. It has sustained its activities largely through the voluntary work and funding provided by editors and supporters. If Arena is to continue and to expand its readership, we need your support to do it.