Emergency terror laws enacted in fear and haste after "9/11" are coming up for mandatory review. It's time we got rid of laws, like preventative detention without charge, which "sits well outside conventional criminal law", according to the Speaker of the ACT Legislative Assembly, Shane Rattenbury. He speaks for everyone who yearns for a return to sensible laws in Australia.

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Criminal laws the best way to arrest and detain terror suspects

Following terrorist bombings in the London subway in 2005, Australian States and Territories created laws to preventatively detain terror suspects without formal arrest or charge. At the time, the Australian Government argued that these new powers were necessary because there were holes in conventional criminal law that left us open to terrorist attack. Preventative detention was seen as a backstop to catch terror suspects who could not be arrested under conventional laws.

The legislation creating these powers is known as the Terrorism (Extraordinary Temporary Powers) Act, and the five year sunset clause on these ‘temporary’ powers comes up this November.  When the government moves this week to roll over these laws for another five years, the ACT Greens will be moving amendments to delete preventative detention orders from the statute book.

During the original debate of the proposed laws, the ACT Law Society made the statement that there was “no demonstrated need for the powers”. That analysis remains true, with traditional legal constructs quite capable of dealing with the terrorist threat we face.

Preventative detention without charge sits well outside conventional criminal law. It strikes against fundamental liberties that Australia holds dear. It has long been regarded as unjust for the state to be able to bring someone off the street and detain them without charge. If police cannot articulate the criminal charge they want to question the person about, then the detention is seriously questionable.

Deleting preventative detention from the law does not mean a free ride for potential terrorists.  Instead of over-reaching in to our civil liberties, we believe police and counter terrorism agencies should operate within well proven criminal constructs, and specific anti-terrorism offences.

Conventional criminal law operates preventatively through the creation of formal crimes such as planning to commit a terrorist attack and conspiracy to murder. That is, they allow for formal arrest before the damage has occurred.

When a suspect is arrested in the ACT on suspicion of planning to commit a terrorist act, an investigating authority may detain that person for up to seven days for questioning. This is an extended time that only applies to terrorism suspects. This power provides a more comprehensive protection against terrorist attack because under this head of power, questioning of the suspect is allowed. This is strongly contrasted against preventative detention under the ACT regime where questioning of the suspect is strictly prohibited.

Clearly, it will be in the public interest to be able to question suspects under conventional laws and gain further information from them as this may lead to the arrest of terrorists still active in the community. It is also important to note that the Commonwealth is currently contemplating extending their detention time frame beyond seven days

It remains a reality that we need to be vigilant to terrorist threats in Australia.  We also need to be vigilant against bad laws and overreaching powers.  The National Counter Terrorism Committee have said that “preventative detention legislation is difficult and operationally impractical”. It also interferes with well established civil liberties.

The time has come to recognise a mistake was made five years ago when Australia created preventative detention. The concept is an unjustifiable intrusion into our civil liberties and the ACT can lead the way in showing that a vigorous counter terrorism response need not come at the expense of our freedoms.

Shane Rattenbury MLA
ACT Greens Attorney-General’s spokesperson

This article appeared first in the Canberra Times on 18 Oct 2011.