The government often hands out toys for the boys, like $400,000 ‘Batmobiles’ suitable for feature roles in movies. But it is less keen on reforming excessive anti-terror laws, imposed in haste and fear over the past decade. Dr Chris Michaelsen analyses the comparative value of vehicles and the newly-appointed Independent Monitor of Terrorism Legislation, Bret Walker.
Click to enlarge; A 9-tonne Bearcat to be used by police for crime and terrorism. (ABC)
Batmobiles versus National Security Legislation Monitor
By Dr Chris Michaelsen*
On Wednesday (27 April 2011), Federal Attorney-General Robert McClelland unveiled the Government’s latest weapon against terrorism in Sydney’s Centennial Park: three pitch-black, bullet-proof police vehicles costing $400,000 each. According to McClelland, the mere arrival of one of these vehicles on the scene can significantly change the psychological dynamic of an event and lead to a resolution of the situation. It is reassuring to learn that the terrifying-looking wonder vehicles – which could easily serve as Bruce Wayne’s ride of choice in the next Batman movie – will be deployed at the very hot spots of Australia’s terrorism problem. They are to be handed over to state and territory police agencies in the Australian Capital Territory, South Australia and the Northern Territory in the coming weeks.
The media spectacle of the new police vehicles, however, has stolen the spotlight from another development in counter-terrorism, and one which is of much greater significance. Last week, acting Prime Minister Wayne Swan announced the appointment of Sydney barrister Bret Walker SC to the role of Australia’s first Independent National Security Legislation Monitor. The lack of similar political fanfare surrounding this appointment is understandable. It has taken the Government more than a year to fill the job.
Walker was appointed under the Independent National Security Legislation Monitor Act 2010 which created this position in response to recommendations from the Parliamentary Joint Committee on Intelligence and Security, as well as recommendations from the independent Security Legislation Review Committee (the Sheller Committee) and from the Clarke Inquiry into the mishandled case of Indian-born Gold Coast doctor Mohamed Haneef. The position is partly modelled on the United Kingdom where an Independent Reviewer of Terrorism (currently David Anderson QC) has had a positive impact on the public discourse and reform of Britain’s anti-terrorism legislation.
The appointment of Bret Walker is a good choice and long overdue. But its delay is unsurprising. To date, the Government has been exceptionally slow in implementing reform of Australia’s legislative counter-terrorism framework. Last year it adopted the National Security Legislation Amendment Act 2010. This piece of legislation was publicly sold as a comprehensive reform package. And it was comprehensive in size, indeed. Yet, despite its formidable size, the Act failed to tackle the most problematic aspects of existing laws. At the time, Nicola McGarrity from the Gilbert + Tobin Centre of Public Law at UNSW rightly described the government’s reform efforts as "tinkering around the edges" of anti-terrorism legislation.
Wide-ranging reform, however, is urgently needed. In spite of the fact that Australia has not witnessed any acts of terrorism on its soil since the bombing at the Hilton Hotel in Sydney in 1978, we have some of the most draconian anti-terrorism laws in the Western world. Since 9/11, Parliament has enacted more than 40 pieces of anti-terrorism legislation. In contrast to the United States, Britain 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 AFP was given extensive 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".
Over the past decade, these laws 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, including condemnation by the UN Special Rapporteur on Human Rights and Counter-Terrorism. What most of the criticisms have in common is a concern that fundamental features of Australia’s criminal justice system have been dismantled in the name of fighting terrorism. And further, that these extraordinary anti-terrorism 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 lack of meaningful reform by the Labor government to date may be partly explained by the fact that there are huge political costs involved for individuals and parties in power, should they cut down existing legislation and then be surprised by a successful attack. In such a situation, the political costs would be devastating indeed. This explains why governments regularly place greater emphasis on the potential dangers of terrorism than the objective level of threat deserves – the Australian government has not been an exception in this regard. Yet, while such emphasis is understandable from a political perspective, it does not legitimise ignoring the realities of the threat in the first place. In Australia, the threat of terrorism is trivial.
It remains to be seen how Bret Walker will interpret the role of the National Security Legislation Monitor in practice and whether he will be able to engage with the Gillard government in a meaningful dialogue about Australia’s excessive anti-terrorism laws. Walker has certainly a tough job ahead of him, and one with very limited financial resources. The annual budget for his office is less than the cost of one of the new counter-terrorism police vehicles. Ten years after 9/11, it is about time that the government takes independent advice on national security legislation more seriously.
- Dr Chris Michaelsen is a Senior Research Fellow at the Faculty of Law, UNSW, and a member of Civil Liberties Australia.
This article appeared first in the Canberra Times on 29 April 2011