Hyper terror laws strain Australia's democracy
Australia has more anti-terror laws than comparable western countries; such laws undermine our democratic freedoms, academics agree. At some stage anti-terror laws in Australia could become part of the problem, and not the solution, Professor George Williams writes. What stage are we at, a decade after terrorists attacked America from the air?
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Hyper terror laws strain Australia’s democracy
By Prof George Williams*
Australia's anti-terrorism laws restrict democratic freedoms and would never have been allowed to pass in the USA.
Australia responded to 11 September 2001 with an extraordinary burst of law-making. In the ensuing decade, the Federal Parliament enacted 54 pieces of anti-terrorism legislation; 48 of these were passed under the Howard government, an average of one new anti-terrorism law every seven weeks.
The numbers are striking. A study by Canadian Professor Kent Roach found that ''Australia has exceeded the United Kingdom, the United States, and Canada in the sheer number of new anti-terrorism laws that it has enacted since 11 September 2001. Australia's hyper-legislation strained the ability of the parliamentary opposition and civil society to keep up, let alone provide effective opposition to, the relentless legislative output.''
The numbers tell only part of the story. Of greater importance is the reach of the laws in introducing restrictions on speech through sedition offences and censorship; detention and questioning for up to a week by the Australian Security Intelligence Organisation of Australian citizens not suspected of any crime; the banning of organisations by government; control orders that can enable house arrest for up to a year; detention without charge or trial for up to 14 days; covert surveillance of non-suspects; and warrantless searches of private property by police.
As these examples demonstrate, exceptional powers and sanctions thought to lie outside the rules of a liberal democracy, except during wartime, have become part of Australian law. Moreover, they remain on the statute book, and have taken on a character of permanence.
Thirty-seven men have been charged under the laws, with 25 convicted and often sentenced to long periods of imprisonment. These terrorism trials demonstrate the reach of the laws. New federal offences include possessing ''things'' connected with terrorist acts and doing ''any act'' in preparation for, or planning, a terrorist act. Such crimes are punishable with jail terms of up to life. The offences demonstrate how Australia's new laws are primarily directed at the prevention of terrorism. In sentencing five Sydney men in February 2010 for ''conspiracy to do an act connected with preparation for a terrorist act'', Justice Whealy said: ''The legislation is designed to bite early, long before the preparatory acts mature into circumstances of deadly or dangerous consequence for the community.''
In that case the five men were convicted on evidence that they had purchased ammunition, chemicals and laboratory equipment and possessed extremist propaganda and military instructional material. However, they did not have a plan and had not picked a target, and did not necessarily intend to kill innocent civilians. All were sentenced to jail terms of more than 20 years.
Several lessons can be drawn from these laws. First, Australia needed new laws to prevent terrorism. The absence of national anti-terrorism laws before 11 September 2001 was not surprising. Apart from isolated incidents such as the 1978 bombing at the Sydney Hilton Hotel, Australia had little direct experience of terrorism.
However, the rarity of such attacks did not justify the lack of law. Anti-terrorism laws should be in place before a possible attack. The worst possible time for enacting anti-terrorism laws can be in the aftermath of a devastating loss of life, when fear and grief can compromise any chance of rational debate.
It has been argued that laws were not needed because terrorism could be dealt with by existing criminal law. This is not sustainable. Laws were required to deal with specific issues. For example, Australia needed to outlaw the financing of terrorism overseas, and police and intelligence agencies needed new powers to prevent attacks at home.
Australia also needed to enact new anti-terrorism laws to meet its obligations as a member of the international community. For example, Resolution 1373 of the UN Security Council, adopted on 28 September 2001 determined that states shall ''take the necessary steps to prevent the commission of terrorist acts''. While Australia had criminal laws to prosecute individuals for acts of terrorism after the event, the nation lacked laws directed at the prevention of terrorism.
Australia's anti-terrorism laws have an important moral dimension. In an era punctuated by attacks starting with New York and Washington and followed by Bali, Madrid, London, Mumbai, Jakarta and elsewhere, it was appropriate that Australia outlawed such forms of political violence. Enacting a crime of terrorism signalled that Australia rejects the use of violence for political, religious or ideological means.
Second, Australia's experience shows how inferior laws result from poor processes of enactment and review. The nation needed new anti-terrorism laws, but too many of the laws we received reflect problems of process and political judgment.
Australia's first set of anti-terrorism laws set a bad precedent. They were driven through the House of Representatives on 13 March 2002, the day after they were introduced. They demonstrated a theme that applied until the fall of the Howard government: laws were too often passed with inordinate haste and insufficient scrutiny and debate.
Once it gained a majority in the Senate after the 2004 election, the Howard government rode roughshod over parliamentary process. The London bombings of July 2005 saw the government announce a range of contentious measures including control orders and sedition. The bill, introduced into Parliament on 3 November 2005, was accompanied by a statement by the then attorney-general, Philip Ruddock, that ''the government would like all elements of the anti-terrorism legislation package to become law before Christmas''.
This left little time for Parliament to do its work, let alone for members of the community to consider the changes. After a quick-fire Senate committee inquiry, the legislation passed on 7 December in plenty of time for Christmas.
One consequence of this hasty enactment was immediate recognition that at least one aspect might be flawed. The package included new sedition offences with seven-year jail terms. The offences applied to mere words, and contained inadequate protection of speech such as scientific analysis and comedy.
The sedition offences were referred to the Australian Law Reform Commission, which reported in July 2006 that there were extensive problems, and recommended change. However, the Howard government never implemented these recommendations. Even a change of government in 2007 did not quickly bring reforms. It took until 2010, five years after the sedition offences were enacted, for the changes to be legislated.
Problems in the making of anti-terrorism laws can, to an extent, be remedied by efficient and effective processes of review. However, Australia's record in this regard is patchy and inconsistent. Even where reviews have been conducted, the level of political commitment to adopting their recommendations has been low. Findings of high-level, expert panels have been ignored or only implemented years later. The common thread of Australia's anti-terrorism laws is that they have been enacted in undue haste and reviewed and repaired some years down the track, or often not at all.
Anti-terrorism laws demand ongoing vigilance. Without this, powers that can be justified only in that extraordinary setting may become accepted as normal and applied elsewhere. An example is the adaption of the control order regime to bikie groups in several Australian states. The SA Premier, Mike Rann, justified this by saying: ''We're allowing similar legislation to that applying to terrorists, because [bikie groups] are terrorists within our community.''
Third, Australia's lack of human rights safeguards can allow laws that too readily undermine democratic freedoms. A central challenge in making anti-terrorism laws is how best to ensure the security of the nation while also respecting the liberty of its people. In democratic nations, the answer is usually grounded in a human rights act or bill of rights.
In contrast, Australia is the only democratic nation without such a check and balance. This leaves key questions about the rights and liberties of the community outside of legal protection and instead subject to the possibility of political compromise and opportunism. These have had a major impact on Australia's anti-terrorism laws.
Australia has gained anti-terrorism laws that undermine democratic freedoms to a greater extent than elsewhere. For example, it would be unthinkable, if not constitutionally impossible, in nations such as the US and Canada to restrict freedom of speech in the manner of Australia's 2005 sedition laws. It also would not be possible to confer a power upon a secret intelligence agency that could be used to detain and question non-suspect citizens.
Fourth, law is only part of the answer because these laws come with costs. In particular, the laws can give rise to a sense of grievance in sections of the community where people believe they have been unfairly singled out. This can be magnified by the exceptional nature of the laws and what can be a heavy-handed government and media reaction to their use.
This also reflects the fact that aspects of Australia's anti-terrorism laws have been almost exclusively applied to the Muslim community. For example, despite terrorism being a phenomenon that applies across a large range of political ideologies and religions, 18 of the 19 organisations banned by the government are associated with Islamic goals or ideology.
This is the dynamic that terrorists rely upon. Terrorism as a political strategy requires nations to over-react in their attempts to prevent attacks. Terrorists cannot achieve their objectives through military might, and rely upon the fear their actions provoke.
Terrorism promotes a cycle whereby an attack feeds a reaction that contributes to the bringing about of a further attack. Anti-terrorism laws can cause resentment and radicalisation within a community.
Even where anti-terrorism laws are applied fairly and drafted appropriately, the exceptional nature of the laws means there will always be a risk of a community counter-reaction. The laws can become part of the problem, and not the solution.
Australia's federal governments were late to realise that anti-terrorism laws need to be complemented by community-based strategies. It is only recently that programs have been developed to combat domestic extremism. These and other initiatives are required to bolster social cohesion in the face of destabilising anti-terrorism laws.
ENDS
* George Williams is the Anthony Mason Professor of Law at the University of NSW and, as an Australian Research Council Laureate Fellow, is completing a five-year international study of anti-terrorism laws and democracy. He is a member of CLA. This article appeared first in the Sydney Morning Herald:
Civil Liberties Australia
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