Australia’s quest for national security is undermining the courts and could lead to secretive trials

Bernard Collaery’s whistleblower trial will be a key test of the National Security Information Act and the restrictions it places on defendants and the courts.
Lukas Coch/AAP

Keiran Hardy, Griffith University

This is part of a new series looking at the national security challenges facing Australia, how our leaders are responding to them through legislation and how these measures are impacting society. Read other stories in the series here.

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In August, the intelligence officer known as Witness K indicated he would plead guilty to a conspiracy charge under section 39 of the Intelligence Services Act. That section prohibits the disclosure of information acquired or prepared by the Australian Secret Intelligence Service (ASIS).

His lawyer, Bernard Collaery, will contest the same charge in the ACT Supreme Court.

Concerns have been raised about the use of the National Security Information Act (NSIA) in the Collaery trial. Anthony Whealy, a former judge who presided over several of Australia’s recent terrorism trials, said

This could be one of the most secretive trials in Australian history.

Both cases will be back in court this month. A hearing is also scheduled to consider how national security information will be dealt with in the Collaery trial.

There has been significant media discussion around the ASIS bugging that Witness K and Bernard Collaery exposed, but less about the NSIA.

So what is the National Security Information Act? Why was it introduced and how could it lead to secretive trials?

Having its cake and eating it, too

The purpose of the NSIA is to protect national security information while allowing it to be used in Australian courtrooms. It applies in federal court proceedings, both civil and criminal.

Before the NSIA, prosecutors faced a difficult choice. They could prosecute someone for terrorism, national security or secrecy offences and risk having sensitive information disclosed publicly, or they could keep the information secret and possibly have the prosecution fail.

The act was introduced in 2004 as part of Australia’s vast suite of counter-terrorism laws, designed specifically to help prosecutors convict people for terrorism offences.

Now, the government can have its cake and eat it too: it no longer needs to choose between protecting sensitive information and prosecuting someone for disclosing it.

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What does the NSIA do?

The NSIA creates special procedures by which national security information can be protected while still being used as evidence.

National security information is defined broadly under the act as any information relating to

Australia’s defence, security, international relations or law enforcement interests.

There are two circumstances in which the NSIA procedures can be triggered. The first is when the parties know in advance they are likely to reveal national security information during the trial. The parties must notify the attorney-general of this, or face two years in prison.

The second set of circumstances relates to when a witness is being questioned on the stand and an answer has the potential to reveal national security information. If a lawyer or the defendant knows this could happen, he or she must stop the witness from answering and notify the court, or the same penalty applies.

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In either of these circumstances, the attorney-general can issue a non-disclosure certificate that prohibits the information from being revealed or allows it to be revealed in summary or redacted form. The court then holds a closed hearing in which the judge will determine whether and how the information may be used.

In a closed hearing, not only are journalists and members of the public barred from attending, but also the jury. The judge may even exclude the defendant, the defendant’s lawyer or a court official if revealing the information to them would be likely to compromise national security.

Supporters of Bernard Collaery and Witness K protesting outside Supreme Court in Canberra in August.
Lukas Coch/AAP

Withholding information from defendants

That the legislation permits closed hearings is not necessarily the main issue, though this certainly undermines the principles of open justice. However, closed hearings are an option in other sensitive cases, such as those involving child victims of sexual assault.

The main problem with the NSIA is that it creates a situation in which national security information can be used in a courtroom without the defendant, jury, media or general public knowing the details of that information.

Producing evidence in summary or redacted form means that the gist of the information is provided, but key details are kept secret. In fact, it is not even clear under Australian law that something approximating a gist needs to be given.

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Read more:
From Richard Boyle and Witness K to media raids: it’s time whistleblowers had better protection

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This undermines the defendant’s ability to argue their innocence. A core aspect of procedural fairness and the right to a fair trial is that defendants must know the case against them. This allows their lawyers to contest the veracity of the evidence through cross-examination.

Without knowing when or how the prosecution’s evidence was collected, or even the precise claims the evidence is making, lawyers cannot adequately defend their clients. They are fighting with one hand tied behind their backs.

Weighing national security vs a fair trial

Moreover, in deciding how potentially sensitive information can be used in court, judges must give greater weight to national security than the defendant’s right to receive a fair hearing.

In other words, the NSIA does not require a judge to balance national security and a fair trial equally. More weight must be given to the former under the law.

It may be that judges can still strike an appropriate balance so defendants receive a fair hearing in cases like these. But if a contest between national security and a fair trial needs to be decided, it is clear which one wins.

Using the NSIA in the Collaery trial is also significant because the accused is a whistleblowing lawyer and not someone accused of terrorism.

After the recent police raids on the ABC headquarters, the home of a News Corp journalist and the home of an Australian Signals Directorate officer, the Australian media will be watching this trial closely.

It is likely, given the sensitive nature of the ASIS bugging scandal, that information will be withheld from Collaery’s defence team for national security reasons. This is a significant test case for whether whistleblowers can receive a fair trial in the current climate of government secrecy.

Keiran Hardy, Postdoctoral Research Fellow, Griffith Criminology Institute, Griffith University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Al-Qaeda fighters turn to secretive chat rooms and encrypted message boards to plan attacks

Church in China to Risk Worshipping in Park

Evicted from one site and denied others, unregistered congregation resorts to open air.

LOS ANGELES, April 7 (CDN) — One of the largest unregistered Protestant churches in Beijing plans to risk arrest by worshipping in the open air this Sunday (April 10) after eviction from the restaurant where they have met for the past year.

The owner of the Old Story Club restaurant issued repeated requests for the Shouwang Church to find another worship venue, and authorities have pressured other prospective landlords to close their facilities to the 1,000-member congregation, sources said. Unwilling to subject themselves to the controls and restrictions of the official Three-Self Patriotic Movement (TSPM), the congregation has held three services each Sunday in the restaurant for more than a year.

Church members have said they are not opposed to the government and are not politically active, but they fear authorities could find their open-air worship threatening.

“Normal” (state-sanctioned) religious assembly outdoors is legal in China, and even unregistered church activity is usually tolerated if no more than 50 people gather, especially if the people are related and can cite the gathering as a family get-together, said a source in China who requested anonymity. Although the congregation technically risks arrest as an unregistered church, the primary danger is being viewed as politically active, the source said.

“For a larger group of Christians to meet in any ‘unregistered’ location led by an ‘unregistered’ leader is illegal,” he said. “The sensitivity of meeting in a park is not being illegal, but being so highly visible. Being ‘visible’ ends up giving an impression of being a political ‘protest.’”

The congregation believes China’s Department of Religious Affairs has overstepped its jurisdiction in issuing regulations limiting unregistered church activity, according to a statement church leaders issued this week.

“Out of respect for both the Chinese Constitution [whose Article 36 stipulates freedom of worship] and Christian conscience, we cannot actively endorse and submit to the regulations which bid us to cease all Sunday worship activities outside of [the] ‘Three-Self Patriotic Movement’ – the only state-sanctioned church,” according to the statement. “Of course, we still must follow the teachings of the Bible, which is for everyone to submit to and respect the governing authorities. We are willing to submit to the regulations with passivity and all the while shoulder all the consequences which . . . continuing to worship outside of what is sanctioned by these regulations will bring us.”

The church decided to resort to open-air worship after a prospective landlord backed out of a contractual agreement to allow the congregation to meet at the Xihua Business Hotel, the church said in its statement.

“They had signed another rental contract with another property facility and announced during the March 22 service that they were to move in two weeks,” the source said. “In spite of the fact that they had signed a formal contract, the new landlord suddenly called them on March 22 and refused to let them use the facility.”

The landlord offered various excuses for reneging on the contract, according to church leaders, and that disappointment came after 15 months of trying to obtain the key to another property the church had purchased.

“The space in Daheng New Epoch Technology building, which the church had spent over 27.5 million RMB [US$4.2 million] to purchase, has failed to hand the key over to the church for the past year and three months because of government intervention,” the church said in its statement. “For the past year, our church has not had a settled meeting place.”

Beginning as a house church in 1993, the Shouwang Church has been evicted from several rented locations. It also met outside after its last displacement in 2009. The congregation does not believe its calling is to split up into smaller units.

“For the past several years the church has been given a vision from God to be ‘the city on a hill,’” the source said. “Especially since 2009, when they officially began the church building purchase, they have been trying to become a more officially established status. At this point, they feel that they have not completed the journey in obedience to God.”

The number of Protestant house church Christians is estimated at between 45 and 60 million, according to Yu Jianrong, a professor at the Chinese Academy of Social Sciences Rural Development Institute. Yu and others have concluded that house churches are a positive influence on society, but the government is wary of such influence.

Yu estimated another 18 to 30 million people attend government-approved churches – potentially putting the number of Christians higher than that of Communist Party members, which number around 74 million.

The government-commissioned study by Yu and associates suggested that officials should seek to integrate house churches and no longer regard them as enemies of the state. The study employed a combination of interviews, field surveys and policy reviews to gather information on house churches in several provinces from October 2007 to November 2008.

Yu’s team found that most house or “family” churches fit into one of three broad categories: traditional house churches, open house churches or urban emerging churches. Traditional house churches were generally smaller, family-based churches, meeting in relative secrecy. Though not a Christian himself, Yu attended some of these meetings and noted that the focus was not on democracy or human rights but rather on spiritual life and community.

The “open” house churches were less secretive and had more members, sometimes advertising their services and holding public gatherings, he found. Urban emerging churches functioned openly but independently of TSPM churches. In some provinces such as Wenzhou, these churches had constructed their own buildings and operated without interference from local officials.

While some house churches actively seek registration with authorities to avoid arrests and harassment, they would like the option of registering outside the government-approved TSPM structure, as they disagree with TSPM beliefs and controls. Many unregistered evangelical Protestant groups refuse to register with TSPM due to theological differences, fear of adverse consequences if they reveal names and addresses of church leaders or members or fear that it will control sermon content.

Report from Compass Direct News
http://www.compassdirect.org

Jewish Christian in Israel Seeks Protection from Repeated Attacks

Police unresponsive to U.S.-born activist assaulted for his faith.

JERUSALEM, December 28 (CDN) — A Christian of Jewish origin who has been attacked on the streets here four times because of his faith in Christ is seeking police protection.

Jerusalem resident Yossi Yomtov said police have been slow to investigate hate crimes against him by youths wearing kippahs, cloth skullcaps typically worn by observant Jews. In two of the attacks a youth plied him with pepper spray and stun gun shocks, he said.

“This young man cursed me for my belief in Christ,” Yomtov told Compass. “He used ugly curses and spoke in highly abusive language.”

Yomtov, who founded social activist group Lemallah (“Upward”) after moving to Israel from the United States in 1999, said he was last attacked on Dec. 19. On that occasion his group was holding a demonstration in downtown Jerusalem, he said, when a man chanting anti-Christian slogans and using foul language approached him and begin striking him. Police never showed up in spite of many calls to the police station, he said.

Yomtov said he received Christ in 1984, while still living in the United States. He said he became a Christian after he “hit the bottom” – taking drugs and engaging in “in illegal activity.” He regards himself as a Jewish Christian belonging to no one church; he does not belong to the highly organized movement of Messianic Jews.

“I’m not secretive about my belief like some other people, and I often talk about it,” he told Compass. “That’s how many people are aware of me believing in Jesus Christ.”

In previous attacks in the last few months, the assailants appeared to be teenaged or young men of French origin, he said.

“When they approached, one of them started cursing me – I ignored him, as I figured he wasn’t about to attack me, but he did,” Yomtov said. “I received a punch in the face and had to defend myself.”

Police arrived and caught one of the attackers but refused his request to press charges, he said. Yomtov said he asked police why they didn’t secure any witnesses.

“I was told to shut up,” he said. “It was clear that they were not going to press any charges.”

A month later, he said, he was attacked again. The same teenaged youth approached him on King George street in downtown Jerusalem.

“He sprayed my eyes with a pepper spray, and I stood there, blind, for at least 15 minutes,” Yomtov said. “People at a nearby bus stop started calling the police, but they never showed up.”

Late at night on Oct. 12, the harrasment continued.

“I was walking in the city center, in close proximity to a very central Ben-Yehuda street sometime after midnight, and a group of youths with stun guns attacked me brutally,” he said. “I rushed to the police station, but the police officer again was reluctant to take up this complaint, and it took quite a few times and a lot of me convincing them to take this matter seriously.”

Yomtov said he managed to take a photo with his cell phone of the youth who seemed to be the gang leader.

“Finally they agreed to start investigating this issue, yet so far there is no progress in the investigation, and I have totally lost a sense of personal security,” he said. “I don’t know when they’ll come up to me next.”

Police in Jerusalem declined to comment on Yomtov’s case in spite of repeated requests by Compass.

On one street, Yomtov pointed to a morass of hatefull grafitti. Written with Hebrew characters, some of it employed foul language in referring to Christianity and Islam; other messages proclaimed threats such as, “Death to Arabs” and “Death to the left.”

“It seems as if they don’t want to stop the hate crimes, the hate graffities, until it’s too late,” Yomtov said. “If they were serious about enforcing laws against violence they would have at least identified the perpetrator and submitted that information in the complaint file for the prosecutor. Instead they threatened me with arrest, when all I wanted was to investigate the violent crime against me.”

He referred to the recent indictment of ultra-orthodox Jewish extremist Jacob Teitel, an immigrant from the United States charged with multiple hate crimes, including the murder of an Arab shepherd and taxi driver in 1997 and the planting of an explosive device at the front door of a family of Messianic Jews in Ariel that seriously injured 15-year-old Ami Ortiz.

“I wonder whether the Israeli police could prevent the crimes Jacob Teitel performed, had they been taking him seriously from the beginning,” said Yomtov. “It seems that the Israeli police only care to investigate hate crimes when someone is killed or seriously injured.”

Report from Compass Direct News 

INDONESIA: SHARIA-BASED LAWS CREEP INTO HALF OF PROVINCES

Islamic-based legislation may be a key issue in this year’s elections.

DUBLIN, February 2 (Compass Direct News) – As candidates hit the campaign trail in preparation for Indonesia’s presidential election in July, rights groups have voiced strong opposition to an increasing number of sharia-inspired laws introduced by local governments. They say the laws discriminate against religious minorities and violate Indonesia’s policy of Pancasila, or “unity in diversity.”

With legislative elections coming in April and President Susilo Bambang Yudhoyono likely to form a coalition with several Islamic parties for the July presidential election, such laws could become a key campaign issue.

Although Aceh is the only province completely governed by sharia (Islamic law), more than 50 regencies in 16 of 32 provinces throughout Indonesia have passed laws influenced by sharia. These laws became possible following the enactment of the Regional Autonomy Law in 2000.

The form of these laws varies widely. Legislation in Padang, West Sumatra, requires both Muslim and non-Muslim women to wear headscarves, while a law in Tangerang allows women found “loitering” alone on the street after 10 p.m. to be arrested and charged with prostitution. Other laws include stipulations for Quran literacy among schoolchildren and severe punishment for adultery, alcoholism and gambling.

“Generally the legal system regulates and guarantees religious freedom of Indonesian citizens … but in reality, discrimination prevails,” a lawyer from the legal firm Eleonora and Partners told Compass.

Some regencies have adopted sharia in a way that further marginalizes minority groups, according to Syafi’I Anwar, executive director of the International Center for Islam and Pluralism.

“For instance, the Padang administration issued a law requiring all schoolgirls, regardless of their religion, to wear the headscarf,” he told the International Herald Tribune. This is unacceptable because it is not in line with the pluralism that the constitution recognizes.”

Freedom of religion is guaranteed by Article 29 of the country’s constitution, he added. “Therefore the government must assist all religious communities to practice their beliefs as freely as possible and take actions against those who violate that right.”

While Indonesia’s largest Muslim group, Nahdlatul Ulama (NU), has publicly denounced the implementation of such laws, other groups actively support them. The Committee for the Implementation and Maintenance of Islamic Law (KPPSI) has held several congresses in Makassar, South Sulawesi with the goal of passing sharia-inspired legislation and obtaining special autonomy for the province, similar to that in Aceh.

KPPSI has also encouraged members to vote for politicians who share their goals, according to local news agency Komintra.

 

‘Threatening’ Decision

In February of last year, Home Affairs Minister Mardiyanto declared that the government saw no need to nullify some 600 sharia-inspired laws passed by local governments. His announcement came after a group of lawyers in June 2007 urged the government to address laws that discriminated against non-Muslims.

Moderates were alarmed at Mardiyanto’s decision, fearing it would encourage other jurisdictions to pass similar laws. Last August, Dr. Mohammad Mahfud, newly re-elected as head of the Constitutional Court, slammed regional administrations for enacting sharia-inspired laws.

“[These] laws are not constitutionally or legally correct because, territorially and ideologically, they threaten our national integrity,” he told top military officers attending a training program on human rights, according to The Jakarta Post.

Mahfud contended that if Indonesia allowed sharia-based laws, “then Bali can pass a Hindu bylaw, or North Sulawesi can have a Christian ordinance. If each area fights for a religious-based ordinance, then we face a national integration problem.” According to Mahfud, sharia-based laws would promote religious intolerance and leave minority religious groups without adequate legal protection.

Under the 2000 Regional Autonomy Law, the central government has the power to block provincial laws but showed little willingness to do so until recently when, bowing to pressure from advocacy groups, it pledged to review 37 sharia-based ordinances deemed discriminatory and at odds with the constitution.

Such reviews are politically sensitive and must be done on sound legal grounds, according to Ridarson Galingging, a law lecturer in Jakarta.

“Advocates of sharia-based laws will stress the divine origin of sharia and resist challenges [that are] based on constitutional or human rights limits,” he told The Jakarta Post. “They maintain that sharia is authorized directly by God, and political opposition is viewed as apostasy or blasphemy.”

 

Empowering Vigilantes

A national, sharia-inspired bill regulating images or actions deemed pornographic sparked outrage when presented for a final vote in October last year. One fifth of the parliamentarians present walked out in protest, leaving the remainder to vote in favor of the legislation.

The bill provided for up to 15 years of prison and a maximum fine of US$1.5 million for offenders.

“This law will only empower vigilante groups like the Islamic Defender’s Front (FPI),” Eva Sundari, a member of the Democratic Party of Struggle (PDIP) told reporters. FPI is widely-regarded as a self-appointed moral vigilante group, often raiding bars and nightclubs, but also responsible for multiple attacks on churches.

“Many of the members are preparing for elections and looking for support among the Islamic community,” she added. “Now they can point to this law as evidence that they support Islamic values.”

Although several Golkar Party politicians support sharia-based laws, senior Golkar Party member Theo Sambuaga has criticized politicians for endorsing such legislation to win support from Muslim voters. Several major parties openly back sharia laws, including the Prosperous Justice Party (PKS), the United Development Party, and the Crescent Star party.

 

Key Election Issue

Sharia-based laws may become an even hotter election issue this year as a change to the voting system means more weight will be given to provincial candidates.

Political analysts believe Yudhoyono must form a coalition with most if not all of the country’s Islamic parties in order to win a majority vote against the Golkar party, allied for this election with former president Megawati Sukarnoputri’s PDIP.

The coalition Yudhoyono could form, however, likely would come with strings attached. As Elizabeth Kendal of the World Evangelical Alliance wrote in September 2008, “The more the president needs the Islamists, the more they can demand of him.”

In 2004, Yudhoyono partnered with the NU-sponsored National Awakening Party, the National Mandate Party (founded by the Islamic purist organization Muhammadiyah) and the PKS to achieve his majority vote. Analysts predict PKS will again be a key player in this election.

Few realize, however, that PKS draws its ideology from the Muslim Brotherhood, a group formed in Egypt in 1928 with a firm belief in Islamic world dominance. Crushed by the Egyptian government in the 1960s, members of the Brotherhood fled to Saudi Arabia, where they taught in the nation’s universities – influencing the future founders of Al Qaeda, Hamas, and Sudan’s National Islamic Front.

The Brotherhood took root at a university in Bandung, West Java in the 1970s in the form of Tarbiyah, a secretive student movement that eventually morphed into the Justice Party (JP) in 1998. Winning few votes, JP allied itself with a second party to form the PKS prior to the 2004 elections.

Since then, PKS has gained widespread support and a solid reputation for integrity and commitment to Islamic values. Simultaneously, however, PKS leaders are vocal supporters of Abu Bakar Ba’asyir, leader of the terrorist group Jemaah Islamiyah (JI).

Sadanand Dhume, writing in the Far Eastern Economic Review, says the two organizations have much in common. In its founding manifesto, PKS calls for the creation of an Islamic caliphate. Unlike JI, however, “the party can use its position in Parliament and its … network of cadres to advance the same goals incrementally, one victory at a time.”  

Report from Compass Direct News