Other nations, like Britain, can review and wind back oppressive, over-the-top laws created in panic after the Twin Towers aircraft attacks in New York 10 years ago. If so, why can’t Australia, asks Prof George Williams, where some of the laws are the world’s most draconian.
Britain is taking another look at its anti-terrorism laws, so why can’t we?
By Professor George Williams* Original:April 14, 2011, Sydney Morning Herald
Australia has become complacent about its anti-terrorism laws. Put in place as an emergency response to attacks overseas and the threat of terrorism at home, these laws appear to be a permanent fixture on the statute book.
By contrast, Britain is in the midst of major revisions to its anti-terrorism laws to better protect democratic rights. Australia should do the same.
We needed new laws after September 11, 2001, but what followed was a frenzy of lawmaking that often went too far. By the end of the Howard government in 2007, 44 federal anti-terrorism bills had been enacted, an average of one every seven weeks.
These laws brought about needed reforms, but also changes that were unthinkable before the attacks. These included a seven-year jail term for speech, under revised sedition offences; control orders, whereby people can be subject to house arrest without trial, and serious restrictions on media reporting of national security matters in the courts.
The lawmaking stopped for a time under the Rudd government. However, there has been no broad commitment to wind back, or even revisit, the laws.
This failure has been exposed by events in Britain. After last year’s general election, Home Secretary Theresa May initiated a review of the ”most sensitive and controversial security and counter-terrorism powers”. It found that some ”counter-terrorism and security powers are neither proportionate nor necessary”.
The Home Secretary recognised that the terrorism threat ”is as serious as we have faced at any time, and will not diminish in the foreseeable future”. Nevertheless, she committed the British government to correcting ”the imbalance that has developed between the state’s security powers and civil liberties”. Reforms are now before parliament as part of a Protection of Freedoms Bill.
Australia lacks the same leadership when it comes to anti-terrorism laws. This is unfortunate, because the case for reform is stronger here. Australia does not face the same level of threat as Britain, nor does it have anything like that country’s record of attacks. Despite this, Australia has laws that go further in key respects.
For example, Australia is alone among comparable nations in granting its intelligence agency ASIO the power to interrogate citizens who are not suspected of terrorism for the purpose of gathering intelligence. People can be detained for up to a week and forced to answer questions on pain of imprisonment.
This country has also copied British law on control orders but our regime does not have the same level of checks and balances, including the overarching protection provided by Britain’s 1998 Human Rights Act.
Australian anti-terrorism laws can work against government transparency, and free and open media reporting, and unduly undermine democratic rights and individual liberties. The laws may also fail to combat terrorism. Some parts of the laws, often those enacted in great haste, are complex and poorly worded so as to undermine prosecutions.
The Rudd and Gillard governments took modest steps last year to improve this situation. A new law remedied a well-recognised problem with sedition, among a host of other changes. However, it avoided amending the most controversial aspects of our anti-terrorism laws, such as ASIO’s interrogation power.
A law was passed in March last year to establish an independent monitor of anti-terrorism laws. Inexplicably, that office has not been filled. This bodes ill for the government’s willingness to subject anti-terrorism laws to robust review.
In the meantime, these extraordinary laws are becoming an accepted, rather than exceptional, aspect of our legal system. The unthinkable has become a model for lawmaking elsewhere: a control order regime has been extended to bikies, for example. This shows the dangers of allowing such laws to stand unreviewed. Left unamended, they will have a corrosive influence on the health of our democracy.
* George Williams is the Anthony Mason professor of law at the University of NSW. As an Australian Research Council laureate fellow, he is working on a five-year international project on anti-terrorism laws and democracy. He is a member of CLA.
For the original article in the SMH, and for the comments on it by the public: http://www.smh.com.au/opinion/politics/britain-is-taking-another-look-at-its-antiterrorism-laws-so-why-cant-we-20110413-1ddzc.html#ixzz1JjO7FvLE