Saturday, 26 March 2005.
From: Kendall Lovett and Mannie De Saxe,Preamble
Nowhere is it defined in this Bill. Is it defined in any other Bill? Who defines national security for Australian citizens? Is it solely defined by the Attorney-General at will as required from time to time? It would seem so in this Bill. It appears to us to be a thoroughly illusionary concept invoked to promote fear and danger in the minds of our politicians, the media and the citizens of this country.
We consider that this Bill provides the Attorney-General with far too much discretionary power, bordering on the absolute, to intervene in civil proceedings. Are we to assume that the Attorney-General accepts information provided by ASIO and/or other government security intelligence operatives gained by secret means about which not even our elected representatives are permitted to know? (Refer to public hearing in Melbourne{Thursday, 2 May 2002} on the ASIO Legislation Amendment [Terrorism] Bill 2002 when a member of the Parliamentary Joint Committee was asked if he, Kim Beazley MP, knew what methods were used by ASIO to obtain information from suspects. He replied that even though Committee members had asked on numerous occasions they were not permitted to be told.)
The means used to obtain information that the Attorney-General construes to be a risk to national security may well cause the information to be false. We are reminded of the recent publicity given to the treatment of inmates of military prisons in Iraq and various interrogations of Mamdouh Habib and detainees in Guantanamo Bay. Of course, we keep being told that Australian forces ( and we include other government security operatives) never use such tactics as were described.
Nevertheless, bullying is very much a part of a broad section of the Australian public and evidenced in road rage, racist assaults, gay and lesbian assaults and hate crimes arising generally from prejudice to name a few areas of current bullying. Who is to say bullies are not inducted into and trained in such interrogation methods by bullies within ASIO and other government security intelligence agencies?
We think that there needs to be a review of the methods used to obtain information that could be termed at risk due to the manner in which it is gathered and construed to be prejudicial to some secret form of national security.
Specifics Relating to the National Security Information Legislation Amendment Bill 2005
Schedule 1 –Amendments Part 1: Amendment of the National Security Information (Criminal Proceedings) Act 2004.
Item 10: The definition of “disclose” in Section 7 indicates to us the unfairness of the Executive Government, acting through the Attorney-General, to interfere not just in a criminal proceeding but also now in a civil proceeding implying that it distrusts its judiciary.
Clause 38D says that a party in a civil proceeding must notify the Attorney-General that the party has a belief there could be a “disclosure” which may relate to national security. Such notification could occur before or during the proceeding. The court must then adjourn if it is already in session or, if before the substantive hearing, parties must confer together and then await the decision of the Attorney-General on the issue of a certificate of non-disclosure for a closed hearing.
To us this means that the executive government of the day can very easily turn an ordinary civil proceeding into a criminal one by means of its new offences, simply because a party is unaware of a secret national security definition that forbids disclosure or calls a particular person as a witness who is the subject of a certificate from the Attorney-General.
This Bill is all about ASIO and the Certificates of Non-Disclosure issued for ASIO by the Attorney-General. ASIO has a history of making recommendations to the government of the moment, primarily targeting unpopular and powerless minorities. We offer the following as an example.
In 1964, ASIO issued a secret report to the Menzies Cabinet that “homosexuals were people with serious character defects who could not be trusted to be employed in positions which afforded access to highly classified information.” Cabinet records show that the Menzies Government backed ASIO’s recommendation (The Australian 2.1.95).
Prejudice can so easily be used to support a secret definition of national security.
The buzzword of the day is “terrorism” now probably built-in to national security. We really have no way of knowing, nor how sensitive information has to be for the Attorney-General to consider it prejudicial to national security. Yet in the words of John North, president of the Law Council of Australia, as recently as 21st March this year, “terrorism prosecutions were rare and the existing criminal justice system was equipped to deal with them,” so we maintain there is absolutely no need for this Bill to extend existing criminal legislation into civil proceedings.
Item 22
The fact that Item 22 inserts a new Part 3A into the Act to deal with the protection of information, the disclosure of which in civil proceedings, is likely to prejudice national security, does appear to restrict civil proceedings severely.
Despite Subclause 19(3) and Subclause 19(4) there are very few if any mechanisms to ensure that the parties to the proceedings receive a fair hearing where national security is invoked by the Attorney-General with non-disclosure certificates to force the court into a closed hearing.
Restrictions to a fair hearing include the Attorney-General’s civil witness exclusion certificate: Subclause 38H says that the mere presence of a certain witness and its disclosure is likely to prejudice national security. Subclause 38H(2) states that the certificate be given to the relevant party or its legal representatives stating that it must not call the person as a witness in the proceeding.
Further: Preventing witnesses from disclosing information by not allowing them to answer questions: Clause 38E(2), 38E(3), 38E(4), 38E(5) and 38E(6) requires the witness to give the court a written answer and that the court adjourn the civil proceeding. The court must provide the written answer to the Attorney-General and remain adjourned until such time as the Attorney-General gives the court a certificate or advice.
In a closed hearing, ordered by the Attorney-General, Subclause 38I(3) gives the court a discretion to exclude from part of a closed proceeding a party, a party’s legal representative and a court officer who have not been given an appropriate security clearance. They are excluded because they are considered not trustworthy persons to hear the information the Attorney-General may present –shades of Menzies 1964. The information the Attorney-General will give is likely to contain classified information in arguing either why the information should not be disclosed or why a witness should not be called. The other parties to the proceeding and any of their legal representatives [Subclause 381(4)] must be given the opportunity to address the court on these arguments. But how can they when they have been excluded from hearing the arguments presented by the Attorney-General? Can there ever be a fair hearing for the accused unless the evidence is heard and tested in court?
The Bill allows the Attorney-General if he was represented at the closed hearing, to request that the record be varied, subclause 381(7). The Bill gives him that right if he considers that giving even a security-cleared legal representative access to the record would disclose information and that disclosure is likely to prejudice national security. Subclause 381(5) requires the court to make and maintain a sealed record of the hearing, which it must make available to an appeal or review court. Subclause 381(6) requires the court to give a copy of the record to the Attorney-General. Does that sealed record contain the original version or the doctored (varied) version? Subclause 381(8) says that where the court makes a decision on whether or not to vary the record that the Attorney-General considers to be not appropriate, there is at least a decision that can be quickly appealed under clause 38Q. So, the Attorney-General wins either way which goes to prove to us that we are getting very close to a police state which has little or no respect for the rights of its citizenry.
The Act supposedly does not affect a court’s power to control the conduct of a civil proceeding. Subclause19(3) and (4) say so and give examples: the court retains the power to stay or dismiss a proceeding, to exclude persons from the court or to make suppression orders; and the other: even if the court considers the effect on the substantive hearing in deciding whether to make an order under section 38L, the court will not be prevented from later staying the proceeding on the ground that the substantive hearing would not be fair. In view of what the Bill allows the Attorney-General to do such as: power to exclude a witness from being called to give evidence in a civil proceeding; force a closed hearing on the chance of disclosure of information likely, in his opinion, to breach national security; exclude people without an appropriate security clearance from a closed hearing; to be able to have the record of a closed hearing varied so that even a security-cleared legal representative could be denied access; and to appeal the court’s decision not to vary the record for him; we believe that the court actually does lose control of the civil proceeding despite what the Bill says. To fall back on the stay or standard law position, which is that the accused person is free and regarded as innocent by the law, makes little sense. If someone is being held by ASIO or the Federal Police and wants to seek a Federal Court review, arguing that the warrant was issued unlawfully, there is a likely problem. Suppose the Attorney-General for the executive government argues that relevant information can’t be produced because it would breach national security. Due to lack of evidence which would let it make a fair decision, the court stays the matter, how does that help? It simply gives the victory to ASIO and the federal police, and leaves the poor litigant in unlawful detention.
In conclusion, we consider that this Bill to amend the name of the 2004 Act, and which is to apply to all civil proceedings, meaning all stages of the civil process, in any Australian Court, opens the door to abuses of power and, of even greater concern, the concealment of these abuses. The secrecy provisions contained in this Bill are unreasonable in an open, democratic society and should be removed because they have the potential to undermine the right of the parties to the proceedings to receive a fair hearing. There can be no safeguards written into a Bill that permits secret evidence in civil proceedings to be a deciding factor in litigation. This Bill reminds us of how the law was misused during the Apartheid period in South Africa.
Signed: Kendall Lovett and Mannie De Saxe
From: David Spratt [dspratt@bigpond.net.au] Sent: Wednesday, 14 September 2005 18:39
To: Vicpeace
Subject: SCOTT PARKIN: URGENT ACTION ALERT
SCOTT PARKIN: URGENT ACTION ALERT
UPDATE Wed 14 Sept 2005
*** please send widely ***
The rapid and widespread response to the detention of US peace and global justice activist, Scott Parkin, has been heartening and effective on many levels. Actions have taken place in Melbourne, Sydney, Brisbane, Cairns and outside several Australian Consulates in the United States. Actions yesterday in Melbourne successfully shut down even more ANZ bank branches in protest of ANZ's Iraq war-profiteering. Rory Gutterson, Melbourne activist and friend of Scott Parkin said, "This action demonstrates that activists will continue to target corporations involved in the occupation. The treatment that Scott has received is indicative of the kind of powers the government is trying to exercise against those who oppose the occupation under the guise of the 'war on terror'."
Other acts of political defiance have included dozens of activists 'handing themselves in' for immediate deportation at AFP headquaters and DIMA offices in solidarity with Scott.
Maureen, one of Scott's closest friends and colleagues in the US writes: "The concern and overwhelming support from Australia for Scott Parkin has been amazing. I have known Scott for years and am privileged to count him among one of my best friends, to have lived with him and to have organized many an action both big and small. Nothing comforts me more than knowing there is such a strong support system for him in Australia while he endures this violation."
The media response overall has been largely critical of the detention and deportation of a peace activist and has ensured that the Attorney General Phillip Ruddock has been forced to minimise, deny or justify the actions of ASIO and the Australian Federal Police. Editorials in the Australian and The Age newspapers today have also been largely critical of the threatened deportation. Radio talk back and online feedback sites have been busy and largely supportive of Scott's case. The issue has received extensive international coverage as well.
The combined effect of our protests so far has been to:
1) raise the political cost of ASIO's actions;
2) clearly expose the dangers inherent in the new AFP and ASIO control orders and preventative detention measures to the wider community; and increase public dissent to widening anti terrorism measures in general;
3) create a public focus on the role of Halliburton in the occupation of Iraq, nonviolence and peace activism in general;
3) maintain solidarity and support for Scott - he knows what we are doing;
4) demonstrate how networks of activists, NGO'S, progressive lawyers and politicians can (and will) operate quickly in defence of an imprisoned activist.
All this aims to undermine the government's position against Scott and hopefully, may deter the Australian security forces and government from doing something simillar in the near future. (This is yet to be seen! ).
LEGAL UPDATE: Keren Adams, from Maurice Blackburn Cashman, and Erskine Rodan, immigration lawyer, said they had been advised by DIMIA Tuesday afternoon that Scott would leave the country on Thursday (15th). "In accordance with Scott's wishes, we have asked for Scott to be removed from the country under section 198 (1) of the Migration Act," she said. "At the same time, we have relodged an appeal with the Migration Review Tribunal against the cancellation of his visa. This can continue once he has left the country," she said. Ms Adams said Scott would continue to challenge the reasons for the cancellation of his visa. It is understood Scott could be deported at any time.
WHERE TO NOW?: It remains important to continue the strong community protest at this hideous act of political suppression. As we are aware, Scott is an articulate white, peace activist and he is being targeted because of his nonviolent political activities. Any solidarity with Scott needs to also enhance the safety of more marginalised and threatened activists and communities who are even more targeted in today's Australia.
Scott's campaigning approach follows the People Power Strategy which is gaining much currency within the US anti-war movement. He works for Houston Global Awareness which is waging a highly effective strategic campaign against Halliburton's role as a key pillar in the US occupation of Iraq. See: (Houston Global Awareness ).
We actually believe that it is the growing political effectiveness of this grassroots nonviolent strategy and the fear Scott was 'exporting' it to Australia which has so concerned the US and Australian intelligence services and that has led to Scott's arrest.
The tactic of demonising and marginalising activists by smears and claiming violence is common. Australia's Attorney-General, Phillip Ruddock, has been claiming that Scott Parkin has been engaged in "inciting political violence" in his trainings. It is vital that we continue to strongly rebuke this.
As background: Scott Parkin is high profile peace and global justice activist. He has spoken at numerous large public forums and events whilst in Australia including the Brisbane Social Forum and the Sydney Social Forum in August. He was contacted by ASIO (Australian Security Intelligence Organisation) last week and had been asked to 'come in for an interview' which Scott rightfully declined. Scott participated in a nonviolent street theatre action outside US corporation Halliburton's headquarters in Sydney during protests against the Forbes meeting on August 31st. He has written widely for numerous magazines and spoken publicly about corporate globalisation and Halliburton's role in Iraq over many years. See:Halliburton's role in Iraq. More background is available at: nonviolence.org.au
ACTION YOU CAN TAKE:
It is important that we maintain strong protests and continue to rebut government attempts to demonise Scott and his politics by claims that Scott is involved in "inciting politically motivated violence". We need to continualy assert Scott's humanity and nonviolent political activism.
Some major points that can be made to media, radio talk back, online and to your local senator or member of parliment are:
Scott Parkin has not been charged with any offense nor has he committed any crimes whilst in Australia. Nor has he breached any conditions on his visa; He has not been paid for any trainings or presentations whilst here; Scott is committed to nonviolence and has a long history of such activism; besides that he is a nice guy! Scott has a basic right to organise and participate in protest; As do we all! Neither "spirited protest" and "encouraging spirited protest" is illegal Claims that he incites political violence as utterly without foundation. This ultimately effects us all. If you have not already, please contact you local member of Parliment and/or Federal Senator to express your concerns about this action as soon as possible. Any organisational, union and high-level protests is particulary important.
To make things more bearable for Scott while he is inside, please, please send him an e-mail of support to backingscott@yahoo.com We will print and hand deliver as many as we can to Scott or send them to him when he arrives back in the States.
MEDIA: For media questions or comment, contact Paul Sheridan 0410 516 656 (for Thursday 15th) Dan Cass on 0408 468 488 or Andrea Buffa in the United Sates at andrea@globalexchange.org PROTEST and DIRECT ACTIONS: Some are still being planned and there may be actions if and when Scott is taken for deportation. Contact your local activists groups and monitor your state's indymedia site for updates, announcements and reports.
http://www.melbourne.indymedia.org
or http://oceania.indymedia.org
Anthony Kelly Pt'chang Nonviolent Community Safety Group
www.nonviolence.org.au +61 03 9415 6642
The Attorney General does not have an email address so this letter is being posted to him at Parliament House in Canberra.
From: Self : josken_at_zipworld.com.au> To: josken_at_zipworld_com_au
Subject: Yasin and Parkin Date sent: Sun, 18 Sep 2005 17:48:40 +1000
To Attorney General Philip Ruddock, Parliament House, Canberra, ACT 2600
From Mannie De Saxe and Kendall Lovett, for Lesbian and Gay Solidarity (Melbourne)
2/12 Murphy Grove, Preston, Vic 3072 Phone:(03)9471 4878
email: josken_at_zipworld_com_au
The double standards of the Federal Government are well known to the Australian communities, but the one illustrated in the examples below plumbs new depths.
Federal Governments of any persuasion are known for their homophobia, and we now have an example of what we may expect as gay, lesbian, transgender, HIV/AIDS communities in the next few years.
Sheikh Khalid Yasin comes to Australia and is on a television programme available and accessible to people around the country. He makes the following statements, but the Attorney-General sees no reason for him to be deported:
TELEVISION HOMOPHOBIA -- CHANNEL 9:
The following is an extract from the Sixty Minutes programme on Channel Nine on the night of Sunday 24 July 2005:
"SHEIKH KHALID YASIN: If you prefer the name of somebody on your clothes other than the name of the Muslims, if you prefer the clothing of the Kaffers other than the clothing of the Muslims, most of the names that's on most of those clothing is faggots, homosexuals and lesbians. God is very straightforward about this -- not we Muslims, not subjective, the Sharia is very clear about it, the punishment for homosexuality, bestiality or anything like that is death. We don't make any excuses about that, it's not our law -- it's the Koran.
PETER OVERTON: And this is why young Muslims shouldn't attend university.
SHEIKH KHALID YASIN: The university is a gateway for deviation. You forget your Islamic direction. Now you have become compromised through some kind of intellectuality."
The Prime Minister of Australia has been very vocal in condemning the Sheik's comments about terrorism and bombings, but so far he seems very mute when it comes to the abuse of homosexuals -- why?
If these people had all used racist and sexist epithets in their programmes or in their sports, they would be called to account by their governing bodies. Because they are abusing homosexuals, no one stops them or censures them.
Well, enough is enough. If these situations are allowed to continue without restraints it is time for gay, lesbian, transgender and HIV/AIDS Rights Groups to demand of governments and regulating authorities that penalties be applied to those who continue these abuses.
Then we have a peace activist who comes to Australia, who is demonstrably not here threatening members of the Australian communities as Sheikh Yasin has done in the above extract. Anti- war protester Parkin is deported without valid explanation by the authorities responsible for the deportation.
We expect an explanation from the government and from ASIO, who apparently is not accountable to anyone and does not have to give reasons for its actions. This is simply not good enough and leaves us with the thought that Australia has become a police state, unaccountable to anyone for its actions.
When are you going to tell us why deportation in one case and not in the other?
Signed: Mannie De Saxe and Kendall Lovett, Lesbian and Gay Solidarity (Melbourne)
------- End of forwarded message -------
Gay, Lesbian, Transgender, HIV (GLTH) Asylum Seekers - Part 1
Gay, Lesbian, Transgender, HIV (GLTH) Asylum Seekers - Part 2
Gay, Lesbian, Transgender, HIV (GLTH) Asylum Seekers - Part 3