One of the world’s most respected legal bodies, the International Commission of Jurists, reported in February 2009 that the anti-terrorism laws passed after 11 September 2001 by Australia and other nations have undermined the rule of law and harmed the international fight for justice and human rights. This should come as no surprise.
After all, we live in a world in which measures that had been unthinkable, such as torture, detention without trial and illegal disappearances, have been used not only by despotic regimes, but by leading democracies such as the United States. The report concludes that the universal principles of human rights developed in the decades after World War II are “in jeopardy”.
The three-year study of 40 nations found that the legal framework in place before 11 September was robust and adaptable and would have been effective without draconian new measures. Instead, governments took advantage of the public’s fear of terrorism to pass laws that granted them and their agencies extraordinary powers. On the same day the report was released, the former head of the British spy agency MI5, Dame Stella Rimington, likewise accused her government of exploiting community alarm to restrict fundamental liberties.
The consequence of such actions is that nations, including Australia, “actively undermined” the rule of law and civil liberties in fighting the misnamed “war on terror”. In our case, Australia did need laws to prevent terrorism. Unlike other nations, we had no such laws on the national statute book, and new legislation was justified to deal with the threat apparent after 11 September.
However, Australia also fell victim to overreaction and political opportunism. In the name of protecting social cohesion and democratic principles, we did possibly irreparable damage to these same values. Along with the US and Britain, we undermined progress towards justice and human rights elsewhere. The report makes for sober reading in cataloguing not only how nations like the US came to compromise their once-high legal standards, but how this came to be used by totalitarian regimes to support their own repressive laws.
Much of the report applies with particular force to Australia. John Howard and his government have left the nation a dreadful legacy. >From 11 September to the end of the Howard government, Parliament passed 44 anti-terrorism laws, an average of one every seven weeks. This volume of law-making has no parallel in any other democratic nation.
It is not merely the raw number of laws that causes concern. What really matters is the scope of the extraordinary, often insufficiently checked powers granted to government, and how this has been transferred at the expense of Parliament, the courts and the community.
Australia’s anti-terrorism regime runs to hundreds of pages. It extends to sedition offences that imprison people for their words rather than their actions, control orders that permit house arrest without trial, laws that allow the secret surveillance of innocent people and ASIO being able to have non-suspects detained for up to a week to gather intelligence. These powers can often be exercised in secret, and even where mistakes are made or the power is misused, this cannot always be reported in the media.
Australia has a new government, but these laws remain. Some reforms are expected soon. The Attorney-General, Robert McClelland, promised some positive changes before Christmas, including removing sedition from the statute book. The announcement of these reforms came with the release of the report of former judge John Clarke into the case of Dr Mohamed Haneef.
While that report exposed in graphic detail the mishandling of the case and the flaws and deficiencies in the law, Clarke made a disappointing set of recommendations. Faced with legislation that could allow the unlimited detention of a person not even charged with a crime, Clarke passed the buck in finding that this should be reviewed again by someone else. His report will not be the trigger for greater change.
The debate has stalled. While no new laws have been made, those already on the books remain in force. Unless they are reviewed and amended as a whole, the exceptional laws of recent years will come to be accepted as normal, and lower standards for justice and human rights will be accepted in Australia and by other nations in our region. Inaction will permit what should have been a short-term, exceptional response to unprecedented events to become a permanent feature of our system of government.
By George Williams who is the Anthony Mason Professor of law at the University of NSW, and a member of CLA.
This article originally appeared in the Sydney Morning Herald