“It’s time” says Prof George Williams, time to question whether we need all the terror laws passed in fear and haste in the years after the 11 September 2001 Twin Towers aircraft attacks in New York. A new review will assess whether, as the Prof says, the laws Australia passed “restricted liberty and increased state power more than other like nations.”
Hyper laws outlive reasonableness
By Prof George Williams
It is time to ask whether we need all of our anti-terror laws. For example, should citizens not suspected of a crime be detained for up to a week for questioning by ASIO? Should books and movies be censored for their portrayal of terrorism? Should Australians be held without charge for up to 14 days and placed under a control order including house arrest without being convicted of a crime?
These are all possible under the 54 anti-terror laws enacted by the federal parliament since 11 September 2001. It was not surprising that our lawmakers responded to the loss of life with measures that challenged values such as freedom of speech and the right to a fair trial. Indeed, this was the pattern around the democratic world.
Australia was unusual though in how it restricted liberty and increased state power more than other like nations. We also enacted so many laws that our response is viewed internationally as one of ‘hyper-legislation’.
Other democratic nations have spent recent years revisiting matters such as the decision to go to war in Iraq and whether they overreacted in passing anti-terror laws. By contrast, such debates have to date passed Australia by.
It is a significant failing of our politicians and civil society that we have not had more pause for reflection on the strategic and political choices made over the last decade in responding to terrorism. These are large questions that affect the safety and security of the community, our relations with other nations and the expenditure of billions of taxpayer dollars.
Our anti-terror laws have excited so little attention that they have taken on a sense of permanence, and are increasingly seen as normal rather than exceptional. As such, they present a tempting precedent for legislators. For example, the use of guilt by association and control orders has been copied in anti-bikie laws. Former South Australian Premier Mike Rann justified this on the basis that bikies ‘are terrorists within our community’.
With this in mind, the Prime Minister’s announcement late last week of a major review of anti-terror laws is welcome. Led by retired NSW judge Anthony Whealy QC, it will examine a wide range of offences such as financing terrorism and ‘possessing things’ connected with terrorist acts, as well as preventative detention and control orders.
This review will be assisted by the fact that Australia now has many years of experience with these laws. It has become clearer which laws are effective and which are not, and no doubt much will be learnt from the fact that 26 people have been convicted under them.
On the other hand, some anti-terror laws have not been used. In certain cases, such as preventative detention, this is attributable to Australia’s good fortune of not having a recent terrorist attack on our soil.
Other examples relate to preventing terrorism, and are inexplicable given our enforcement and intelligence agencies undertake extensive work in this area. For example, ASIO Director General David Irvine said last year that his agency responded ‘to literally thousands of counterterrorism leads … we are currently involved in several hundred counterterrorism investigations and inquiries’. Despite this, ASIO has never used its power to detain someone while being questioned.
It has also been more than five years since Australia used a control order. These have only been issued twice, in relation of Jack Thomas and David Hicks. It is not clear that either order was necessary, or did anything to protect the community.
Control orders were introduced into Australia after the London 2005 bombings. Our parliament copied them from the UK, but without the same safeguards. It was striking at the time that Australia’s response to the London bombings was more stringent than that of the UK.
Last year, Conservative Prime Minister David Cameron repealed the UK control order regime in favour of a less intrusive approach. He did so after sustained criticism and in fulfilment of a commitment to ‘reverse the substantial erosion of civil liberties … and roll back state intrusion’. Australia has not yet shown any inclination to follow suit.
Australia needs laws for the investigation and prosecution of terrorism. However, we should not retain legislation that has been discredited overseas and which has not proven effective. It can only be hoped that this latest review will produce a body of law better tailored to protecting the community and safeguarding our democratic values.
George Williams is the Anthony Mason Professor of Law at the University of New South Wales. He is a member of CLA. This article appeared first in the SMH: