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Roger Fitch Esq
17 October, 2005  
Our Man in Washington

Even Roger Fitch in Washington is all steamed-up about the new world of “seditious intention” which is part of Little One and Fabbo’s Anti-Terrorism Bill. Quite how the legislation will help catch real terrorists is a mystery. Under these measures critics of the government are the new terrorists

imageI know there is nothing new under the sun. Just as “terrorism” – the killing of innocent civilians – is as old as recorded history, so is governmental over-reaction and shameless exploitation of it.

Internment, secret detention and mistreatment by governments – none are new. But, at least since the Habeas Corpus Act of 1689 was received into British and American law, we’ve had a right to feel somewhat complacent. Sure, here in the US, Abraham Lincoln unlawfully suspended habeas during the Civil War, but that was eventually struck down by the US Supreme Court in Ex Parte Milligan (1866).

In Milligan, the Supreme Court considered the attempted use by President Lincoln of military commissions to try seditious civilians captured in Union territory during the Civil War. Military trials for civilians is something Mr Bush may be planning for his civilian internees Padilla and Al-Marri, should their abduction from federal court and confinement in a naval brig be upheld by the high court. For US citizens, Padilla is the most shocking of all the cases, as I will explain another time.

The Supreme Court in Milligan specifically spoke to the likely future abuse of constitutional rights by unscrupulous politicians. Here is their eloquent – and highly prophetic – language:

“The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority…

This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate.”

Need I say more? It is hard to find in that judicial philosophy any foothold for the “presidential” military commissions or arbitrary extra-legal military internments in Guantanamo and elsewhere of George W Bush.

Even in Quirin, the “Nazi saboteur” case, the prisoners had lawyers and some rights, and their American accomplices – unlike Padilla, the “dirty bomber” – were accorded civilian trials.

Alas, we now have a generation of politicians and voters in the US who know even less about legal and constitutional history, and the traditions of human rights, than they do about history in general.

Nevertheless, I had expected more from our Australian cousins, even without a bill of rights, the Capital Territory excepted. I’ve been cyber-perusing the new Anti-Terrorism Bill 2005. Thanks to John Stanhope, the ACT Chief Minister, even Yanks can visit this “Draconian” legislation on the internet.

At first glance, the bill seems to offer things George Bush can only dream of, even with his rubber-stamp Congress. That’s not to say he isn’t already doing some of the things Howard proposes, without benefit of law or, in the case of PoWs and legal immigrants, in the face of the law.

Although I don’t yet know the context, I was particularly struck with this definition in Howard’s draft legislation, which is an addition to section 30A of the Crimes Act 1914.

”(3) In this section:
seditious intention means an intention to effect any of the following purposes:

(a) to bring the Sovereign into hatred or contempt;
(b) to urge disaffection against the following:

(i) the Constitution;
(ii) the Government of the Commonwealth;
(iii) either House of the Parliament;

(c) to urge another person to attempt, otherwise than by lawful means, to procure a change to any matter established by law in the Commonwealth;

(d) to promote feelings of ill-will or hostility between different groups so as to threaten the peace, order and good government of the Commonwealth.

Take (a). Please. Where does this leave Australian republicans? Haven’t some of them, from time-to-time, contemned the Sovereign? Let’s hope this paragraph excludes minor royals and de facto sovereigns, such as visiting American presidents.

How about (b)(i)? Disaffection – or at least dissatisfaction – with the Australian constitution: wasn’t that the primary motivation in the deal with the states to bring in the legislation? Doesn’t that deal undermine your federal system and constitutional arrangements?

And look at (b)(ii). I don’t know about you, but I have frequently “urged disaffection against the Commonwealth”, although, to be fair, it was usually the Commonwealth of Virginia.

And (b)(iii). I seem to recall that leaders of both major parties in Australia – Paul Keating comes to mind – have urged disaffection against the Australian Senate. With good reason, if the Senate hands the government this legislation.

Now (c ) would surely cover demonstrations at your detention centres, as well as the actions of greenies – if any remain – and might even include those pesky students when they heckle Dr Nelson. With this legislation, ministers need never be booed again.

If there is any dissent not otherwise covered by the legislative definition of seditious intent, paragraph (d) should pick it up. Still, to be on the safe side, the Howard government could add the following paragraph:

(e) to incite public discussion, or alteration, of Commonwealth Government policies or legislation.

That should take care of John Stanhope.