Attorney-General Robert McClelland's 450-page discussion paper proposes reforms to anti-terror laws claimed to be 'valid, credible, effective and balanced'. But it's questionable whether the proposals hit any of those marks: instead, they demonstrate a fear of reform. Repressive laws crafted to excess in the beginning of the Age of Terror are being normalised into Australian society, Chris Michaelsen (pictured) says.

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In Fear of Reform

By Christopher Michaelsen*

On 12 Aug 09, the Attorney-General, Robert McClelland, released a 452-page “discussion paper” detailing the government’s proposed reforms to Australia’s national security and anti-terrorism legislation.

The proposals represent the biggest changes since the Howard government’s legislative amendments in the wake of the 2005 London underground bombings and, in part, implement the Rudd government’s response to a number of critical reviews of Australia’s counter-terrorism arrangements including the Clark inquiry into the mishandled Haneef affair.

According to McClelland, the proposed reforms are designed to be “valid, credible but effective and balanced for the long term”. It is questionable whether the proposals meet any of these objectives.

Australia has some of the most draconian anti-terrorism laws in the Western world. Although there has not been any terrorist attack here, Parliament has enacted more than 40 pieces of “security legislation” since 9/11. In contrast to the US, the UK and Canada, Australia’s domestic intelligence agency, ASIO, was given unprecedented powers to detain persons not suspected of any offence for up to seven days without charge or trial. The Australian Federal Police (AFP) was given new stop and search powers and may apply for control and preventative detention orders.

Australia’s criminal law and procedure has seen radical changes, too. These include, among other things, the introduction of an overly broad definition of “terrorist act”, the reversal of the presumption in favour of bail in terrorism-related cases, and executive powers to proscribe (and criminalise) organisations considered to be “terrorist”.

Many of these amendments have attracted severe criticism by senior legal practitioners, Supreme Court judges and professional organisations like the Law Council of Australia. They have also raised concern internationally. The UN Special Rapporteur on Human Rights and Counter-Terrorism, for instance, took the view that the Australian definition of “terrorist act” overstepped the UN Security Council’s broad characterisation of the term.

What most of the criticisms have in common is a concern that fundamental features of Australia’s criminal justice system are being dismantled in the name of fighting terrorism. And further, that these extraordinary laws, rather than being effective, have in fact negative long term consequences: they become normalised through application in other contexts such as in the case of criminalising membership in bikie gangs.

The government’s discussion paper contains little to address these concerns and criticisms. Instead, it proposes to expand the already overly-broad definition of a terrorist act to include psychological as well as physical harm. Even more alarming, the paper provides for new emergency powers that would allow the AFP to enter and search premises without a warrant where it is suspected that there is material relevant to a terrorism offence.

Such powers are highly problematic. They would fundamentally undermine existing safeguards that require a judicial officer issuing a warrant. And it is questionable whether there is actually a need for enhanced powers. There is no evidence to suggest, for example, that police are unduly limited by the requirement to apply for a warrant before entering suspicious premises.

In addition, the discussion paper introduces a maximum eight-day limit on the amount of time a terrorism suspect can be held by police without being charged. Under existing laws, police have 20 hours to interview a suspect but can apply for so-called downtime to pursue their investigations, potentially allowing for an open-ended period of detention. In 2007, these arrangements saw Dr Haneef detained without charge for 13 days following his arrest for allegedly supporting a terror organisation. It is commendable that the government has recognised the need for reform. The proposed cap on detention, however, is clearly inappropriate. In particular, it is difficult to see why the police would need to hold someone for more than 48 hours without charge.

The Attorney-General deserves credit for issuing a discussion paper which will be open for public scrutiny and comment until 25 September 2009. Nevertheless, eight years after 9/11 – and with no terrorism attack having occurred on Australian soil – it is time for a comprehensive overhaul of the legislative arrangements introduced during the Howard years. The government’s discussion paper is comprehensive in size. Its content is insufficient.

In particular, the paper fails to address a number of fundamental flaws in existing anti-terrorism laws. In light of the recent Jakarta bombings and the recent raids in Melbourne, wide-ranging reform proposals would have required political courage. It is regrettable that the Rudd government has chosen the path of the scaredy cat instead.

* Christopher Michaelsen is Co-Director of the International Law and Policy Group at the Faculty of Law, UNSW, and a CLA member. This article appeared first in the Canberra Times.