The secret country
Melbourne Age September 17 2005
Why was this man detained on 'national security' grounds and deported? The trouble is, we don't know, writes Ian Munro.
ROB Stary admits he got it wrong. Late last year the president of the Criminal Defence Lawyers Association warned that the Federal Government's new national security laws had the potential to stifle political debate. But he never imagined it would happen so quickly.
Stary believed the new laws, covering terrorism, national security and ASIO, were aimed clearly at Islamic fundamentalists. While the legislation could technically be used to quell political dissent more broadly, he reasoned it was "inconceivable" that this would happen.
This week, after the detention and deportation of US peace activist Scott Parkin, Stary says he underestimated the Government. "Unfortunately, I was wrong, and it seems Parkin is the first example of someone who is a political dissident who suffered the consequences of dissent after being targeted by the intelligence community," Stary says.
In fact, the Government did not have to resort to the new laws to put Parkin in his place. But the new laws could ensure the reasons for his expulsion remain secret.
Last Saturday, six Commonwealth officials swept Parkin, 36, off the thin ribbon of pavement that parts Sydney Road's midday traffic snarl from its retail strip. Parkin, from Houston, Texas, had just stepped from the Kaleidoscope Cafe at the Brunswick end of Sydney Road, and was 10 minutes away from conducting a workshop on protesting.
His escorts - four ASIO officers and two immigration officials - took him to Carlton police station, then to the Melbourne Custody Centre in the bowels of the magistrates court building. On Thursday, after almost a week in detention at his own expense, Parkin was flown home.
Neither Parkin nor his lawyers are allowed to know what he did to warrant expulsion. And, according to his lawyer Marika Dias, he was misled about his right to appeal to the Migration Review Tribunal.
Held in a space without natural light and denied visitors other than his lawyers, Parkin was told appealing would delay his departure, Dias, a lawyer with the Brimbank-Melton Community Legal Centre, says.
"They produced a statement for him to sign, requesting his departure be expedited, but acknowledging in doing so he would be waiving his right to seek a review of the decision to deport him," she says. Later legal advice indicated that Parkin could fight the decision and still accept immediate expulsion.
Parkin's friends dismiss the idea that he is a security threat. They say he is versed in the art of civil disobedience but committed to peaceful action. (To protest against oil giant Exxon, he dressed as its corporate emblem, Tony the Tiger. To protest against oil and gas conglomerate Halliburton, he dressed as a pig - Halli-bacon.)
Bigger than the issue of Parkin's abruptly terminated trip is what it might mean for political debate in a climate of heightened security and secrecy. Parkin's visa was cancelled under decade-old provisions in the Migration Act that require the Immigration Minister to act if ASIO deems someone a "direct or indirect risk" to security.
What is new, under last year's National Security Information Act, is the Government no longer has to reveal to a court the basis of its decision. And even as ASIO was moving to cancel Parkin's visa, Prime Minister John Howard was issuing another tranche of anti-terror proposals, including powers to fit terror suspects with tracking devices, detain them for up to 14 days without charge and make random bag searches in public areas.
"For me, some of the really disturbing aspects of this situation have been the way that the authorities have come to conflate activism and terrorism," Dias says. "It basically means the end of freedom of expression, the end of being able to question the policy of the current government."
Prominent barrister and refugee advocate Julian Burnside, QC, says even though Parkin will challenge his visa cancellation, he may never discover what he was deemed to have done wrong.
Parkin arrived in Australia in June on a six-month visitor's visa and was combining a holiday that included snorkelling the Great Barrier Reef with meetings with local activist groups before continuing to New Zealand.
After leaving the Kaleidoscope Cafe, Parkin was due to present a workshop called "The Battle of the Story", as opposed to the story of the battle. The point of the presentation, says Greenpeace spokesman Tim Hollow, is instructing activists on how to avoid losing their central message in a violent confrontation with authorities.
Too often physical confrontation becomes the story of a protest rather than the issue that drives the protest. Parkin teaches what Hollows calls "de-escalation techniques" to defuse potentially violent situations, and to avoid provoking police. He also advises on non-violent physical blockading methods.
He had earlier run workshops on Halliburton, and participated in a demonstration against the company in Sydney last month.
Halliburton is a big target. US Vice-President Dick Cheney was chief executive of the company for the five years before becoming deputy to George Bush. Halliburton has become prominent in Iraq following the US-led intervention and is the biggest private contractor there, grossing $US9 billion ($A11.3 billion). It is a particular target of Parkin's because it is based in his home town, Houston.
The Sydney demonstration in which Parkin participated was non-violent. No arrests were made. But his detention prompted speculation it may have been in response to pressure from the US.
Burnside says he is no conspiracy theorist, but says the Halliburton connection makes as much sense as any other reason. "When you think it through it makes no sense that he would be given a visa if there was something in his past that justified an adverse assessment," he says.
"It follows that it is something he has done in Australia. If he had done anything violent then you can bet your boots we would have seen it on TV. I mean, this bloke has been treated like a criminal. When you put all the pieces together, no matter how you do it, it doesn't add up."
After he was ushered onto a Qantas flight on Thursday morning, Parkin said he was baffled by his experience. The only official explanation he had been given was that he was assessed as a direct or indirect risk to Australian national security.
A spokesman for Attorney-General Philip Ruddock said ASIO had not opposed the original visa application, but its understanding of his intentions had changed during his trip. Parkin was detained for "encouraging spirited protest".
The expression appalled Burnside. "Spirited protest? Is that as bad as it gets? If they are fair dinkum, and are not covering up an embarrassing mistake, then it probably is time to get worried, because it makes no sense," Burnside says.
With state premiers preparing for the Council of Australian Government's summit on terror powers, Parkin's treatment led Victorian Premier Steve Bracks to sound a note of caution. "Without a proper explanation of why Scott Parkin was detained, there is the potential for the public to question the necessity of the law and whether it should be in place," Bracks said.
The uncertainty surrounding Parkin's detention is simply the latest manifestation of a recent trend towards secrecy, says Stary, who has clients he can't name, and others about whom he knows things he cannot share with his own legal team.
Amendments to ASIO's powers mean individuals subject to interrogation warrants - who lose the right to silence in the process - cannot reveal their questioning for 28 days after the warrant expires.
Under last year's security legislation, the Attorney-General may issue a certificate of evidence so that, in court, evidence deemed sensitive for security reasons may be heard without the jury. It may result in a judge instructing the jury on what the evidence is without jurors having the chance to assess the witness.
Stary questions why Parkin was not charged if he was a security threat. "If it is just that he is a political agitator then it's an outrage that he was ever detained. I find that as troubling as anything I have seen," Stary says.
In Parkin's case the penalty includes the cost of his detention and his escort home. He will be charged about $11,000 should he ever wish to return to Australia.
Immigration specialist Erskine Rodan said reports Parkin failed a character test were wrong. His visa was cancelled under regulations that make that action mandatory in cases where someone is assessed as a risk to Australia's national security.
University of NSW law professor George Williams says episodes such as Parkin's removal are a sign of a growing lack of scrutiny of Government decisions.
"We are going to increasingly see important decisions made behind the cloak of secrecy, and the sort of laws we are dealing with will give added power for these things to occur without adequate scrutiny, without reasons being made known," he says.
"I can see the need for tough laws and I support tough laws, but when you have definitions that are too broad, decisions that are made without appropriate scrutiny, we are really laying the foundations for what could be long-term flaws in our system of democracy." State of Secrecy
Å° ASIO is allowed to hold people in secret for up to seven days. ASIO Act amendments 2004 Å° Those questioned by ASIO may not reveal the fact for 28 days. ASIO Act amendments 2004 Å° The subject of ASIO interrogations must remain secret for two years. ASIO Act amendments 2004 Å° Lawyers can be required to obtain security clearances before representing clients. National Security Information Act 2004 Å° Courts may hear secret evidence in the absence of jurors and lawyers for the defendant. National Security Information Act 2004 Å° The Attorney-General does not permit the release of reasons for ASIO security assessments. Government practice
Story Picture: Scott Parkin: 'secret' reasons for deportation.