We face serious challenges from terrorist movements. But the measures we employ to combat terrorism must not undermine our core values – due process, civil liberties, and freedom of speech and religion. We have to recognise the terrorist danger and we have to respond in a measured, proportionate way.
We need to recognise that civil and political rights and freedom did not come to us as in a single package, a gift from idealists in an ivory tower. They evolved out of the experiences of people who lived through turbulent and violent times, through rebellion, revolution, civil war and religious conflict.
The commitment to protecting individual rights was a rejection of the arbitrary use of executive power which had been justified as essential to the security of the State and its citizens. The power was curbed because it was recognised that its exercise was corrosive to the very order that it purported to serve.
The treaties which governments have negotiated to protect human rights reflect a mindfulness that certain situations might require exceptional measures. For example, the International Covenant on Civil and Political Rights provides that, in times of public emergency that threaten the life of the nation, governments may take measures to cut back their obligations to the extent strictly required by the situation.
But even in these circumstances there are constraints that must be respected. The tension between the interests of security and of civil liberties has been a recurring phenomenon in Australia organisations were banned and native-born Australian citizens were interned during war time; the Communist Party was almost banned in the 1950s.
Australia was not immune from terrorism in the second half of the 20th century: in 1978, a bomb was detonated during a meeting of Commonwealth Heads of Government at the Hilton Hotel in Sydney.
On September 11, 2001 the attacks on New York’s Twin Towers gave rise to urgent action against terrorism and great impetus to the long-standing debate about the intersection of security and human rights.
The characterisation of these attacks as acts of war, rather than crimes, resulted in a range of actual and proposed responses that are more commonly associated with times of war rather than peace, including trial by special courts; indefinite detention without charge; killing of alleged terrorists in non-conflict situations; use of torture to interrogate suspects.
No such proposals have been considered by the Australian Government, but as at 11 September 2001, there were around 35 federal legislative measures in place relating to terrorism. In less than 4 years since then, there have been around 35 new initiatives.
The concerns of MPs that some of the measures sought by the government impacted disproportionately and inappropriately on civil liberties led to some proposals being dropped or amended.
The evolution of counterterrorism legislation between initial proposals and what is enacted reflects underestimated and perhaps unacknowledged strengths in our parliamentary system. Improvements in the legislation were brought about through the efforts of diverse sources, including Government backbench committees and the party room, House and Senate committees and external organisations and experts.
Among the particularly controversial provisions that remain is ASIO’s power to detain and interrogate people who are not suspected of involvement in terrorist crimes. In my view, as I stated in the Parliament on 19 September 2002, if a murderous attack such as the one on September 11 could be prevented only by detaining a person for a short period of time in order to obtain vital information, it is reasonable to give the authorities that power subject to appropriate protections against misuse or abuse.
At the end of 2004, Parliament enacted another law which punishes a person who associates on two or more occasions with a member of a proscribed terrorist organisation. This is a far-reaching form of guilt by association. It criminalises people who did not intend to commit or assist the commission of a terrorist act, and whose behaviour would have been entirely lawful if they had not met with a member of a proscribed terrorist organisation.
Let me reiterate then that alongside anti-terrorist measures that are necessary and reasonable there are some that contain elements that are of serious concern to me.
Following the attacks in London of July 7 the Government reviewed the measures in place and decided that further action is urgently required. Early in September, the Prime Minister announced a number of proposals to strengthen Australia’s counter-terrorism laws.
– giving courts the power to impose so-called control orders on people who pose a terrorist risk to the community, for example restricting their freedom of movement;
– detaining suspects for up to 14 days, without charge or trial, to prevent them engaging in terrorist acts or destroying evidence about terrorism;
– creating a new offence of inciting violence against groups in the community, including against Australian forces overseas and in support of Australia’s enemies.
The Government acknowledges that the proposed measures will curtail the scope of a number of rights, such as liberty and freedom of expression.
When the legislation has been drafted, the Parliament will need to scrutinise it very closely to ensure that in the course of defending the democratic values which terrorism attacks, we do not inadvertently betray them. The responsibility of the Parliament in this regard is particularly substantial.
It is worthwhile taking a look at some of the pitfalls that are manifest in just one of the proposals adopted by the Blair Government since July 7.
An offence is proposed for publishing a statement which glorifies, exalts or celebrates the commission, preparation or instigation of acts of terrorism.
The offence is committed where the terrorist event occurred in the last 20 years, or an older event specified by the minister responsible for the law. The proposed offence raises fundamental issues about the curtailment of freedom of speech. The crime is committed even if there is no evidence that a person intended to inspire emulation or that in the circumstances anyone was likely to be inspired to emulate the action. One needs to seriously question whether a sweeping prohibition of this sort is going to be effective or to bring the law into disrepute.
Since the attacks of September 11, all Australians have had their sense of security shaken. We must recognise the fact that in this environment Muslim Australians have become vulnerable to suspicion, victimisation and prejudice and their commitment to Australia has been publicly questioned.
The fact that, unlike September 11, the identified individuals who perpetrated the attacks in London were born in the UK or had lived there since childhood was a great shock to many people. But, very quickly, and without compelling reasons, the concern to understand the actions of a small, particular group of Muslim men was turned into an attack on multiculturalism in the UK.
All too predictably, there was an echo in Australia “ if we wanted to avoid a repeat of the London bombing, we were warned to end the dangerous policy of multiculturalism. And just what did the critics suggest we needed to do to make us safe?
The most detailed plan came from a former Senator, who, in less than a month, published two somewhat different six-point plans, which suggested, among other things: abolishing SBS and forbidding the public wearing of identity-concealing garments which might cover bomb belts.
A couple of current MPs have suggested that Muslim girls be prohibited from wearing head scarfs in public schools.
I consider such ideas to be absurd contributions to an issue of grave importance. The assertion that the policy of multiculturalism permits and facilitates the propagation and commission of terrorism is false. Australian multiculturalism is an intelligent and necessary response to the diversity of our immigrant population, to the need for equity in public services provided to all Australians and the need to response to the cultures that our migrants have brought.
And the policy was never without limits. Multiculturalism has always explicitly expected all Australians, new and old, to make a commitment to Australia and Australia’s interests, to the basic structures and principles of Australian society “ the constitution and rule of law, tolerance and equality, freedom of speech and religion, and English as the national language.
Multiculturalism is not the problem; it is part of the solution.
I have no doubt that we have good reason to be concerned about the activities of a small number of religious extremists who incite and commit terrorism on the basis of strongly contested versions of aspects of Islam. Our Federal and State Governments are entitled – and indeed are obliged – to take action to protect the community from the threat of terrorist violence, just as they have a duty to protect us from violence perpetrated by people for non-terrorist purposes.
But the power of governments to protect the security of the community must be subject to constraints that are clearly specified and its exercise rigorously scrutinised.
I believe that while a substantial majority of the Australian public believes that a terrorist attack in Australia is inevitable, and effective action needs to be taken against it, many are wary of sweeping measures that might unduly curtail their liberties and the rights of their fellow citizens.
Above all, we need to recognise that, whatever arrangements may be made for sunset clauses, the reality is that the legislation that is put in place now will be with us for a very long time.
This is an edited version of a speech given at the La Trobe Politics Society Annual Lecture, on 20 September 2005.
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