The Expanding Definition Of "Terrorist"


On Friday the first bikie was arrested since NSW’s questionable new anti-gang laws were rammed through State Parliament the day before.

Then last night it was revealed that bike club members had done some "maintenance" at the Lodge last year. Under normal circumstances, club members going about their day jobs would not be news, but in the current climate of hysteria they are all sworn enemies of society and must be up to something.

These two developments serve as a neat snapshot of the way fear-peddling and bad legislation go hand-in-hand to erode long-held freedoms.

In 2002, anti-terror legislation was thrust through the Federal and New South Wales parliaments with great gusto. The justification for the speedy introduction of the new laws was that terrorism, as a criminal act, is by its nature unique, has the potential to be seriously destructive and is generally planned over a protracted period. Moreover, it was suggested that the organisations planning and committing the acts are internationally based, well funded and, most importantly, motivated by extremist ideals far removed from those held by your average Aussie drug pusher, murderer or gangster.

The Commonwealth Attorney General at the time, Daryl Williams, justified the proposed laws as a "response to the changed security environment since September 11". It was argued that the criminal laws in existence at the time were insufficient to combat the threat.

The legislation faced strong criticism. Numerous lawyers, academics, Islamic advocacy groups and concerned Australians complained that the laws were hastily prepared, and lacked adequate checks and balances, or even precision. Assurances were made to the contrary by the government, and all the concerned parties were summarily ignored.

I can recall the former federal member for Wentworth, Peter King, stating in 2004 in support of further reforms that "[a]t the end of the day, what we really want to do is ensure that terrorism and acts associated with terrorism are the real target of this proposed legislation". Numerous promises and assurances of that nature were also made in NSW. The Premier made it clear at that time that additional police powers were absolutely inappropriate for use in everyday civil society. The Attorney General, Bob Debus, echoed these sentiments. The bills passed and were enacted into law.

Nobody can argue that the political and economic landscape in Australia has changed markedly in the years since those laws came into force. While it is not immediately clear, to me at least, whether the nation is any less susceptible to a terrorist attack now than it was shortly after the events in 2001, the hysteria surrounding the spectre of terrorism has died down. National nail-biting has turned to the ailing economy. Most people I know have tossed out that ridiculous anti-terrorist fridge magnet — it is no longer strong enough to hold all the unpaid bills.

However, amid the doom and gloom over our economic situation, the "law and order" issue remains popular as a means of extracting political support from voters.

In early March, the NSW Government introduced the Law Enforcement (Powers and Responsibilities) Amendment (Search Powers) Bill, permitting the covert search of a suspect’s home without their consent or knowledge that it has happened. "If you are a serious criminal in NSW," Premier Nathan Rees bellowed, "you should not sleep easy. These laws will enable our police force to inspect your home without you knowing."

These laws are based on the provisions of the state’s Terrorism (Police Powers) Act 2002 as well as Commonwealth terrorism legislation, however, the act effectively extends the search powers contained in that legislation to state crimes carrying a maximum term of imprisonment of seven years or more.

Likewise, the recent bikie gang-related violence in NSW has provided some colourful, Underbelly-style relief for the media and the Government. Rees et al leapt on the development immediately, taking their cue from the earlier anti-terror laws as well as from South Australian legislation dealing with the problem of outlaw bikie gangs and proposing laws to prohibit members of those gangs from consorting with each other or their associates.

Before he brought his new laws to State Parliament in a surprise move on Thursday, Rees had lamented the possibility that he may not be able to ram them through the legislature at the speed of light, because if hurriedly drafted they might be subject to pesky judicial review.

This, unfortunately, appeared to be his only concern. Little consideration seems to have been given as to whether existing legislation may have been adequate to deal with offenders, or indeed whether the new legislation will necessarily prevent outlaw bikie gangs from simply removing their beards or heading interstate to hold meetings.

Outlaw bikie gangs have been around for decades, trading in drugs, prostitution, firearms and violence. Despite this, when the South Australian laws came into effect in 2005, Mike Rann, the South Australian Premier, sneered: "To the civil libertarians let me say this: that we’ve got legislation across Australia that deals with the threat of terrorism, but these are terrorists within our community who think they can do what they like, and that’s why we’re standing up to them."

Suddenly, the definition of terrorism has expanded. The extremist madman in the cave has become the rough-looking bloke in the pub, and the law appears toothless for all purposes other than to push us further down the slippery slope. The ragged argument that "if you’re not involved, you have nothing to worry about" has well and truly disintegrated, because these new laws will, without doubt, affect ordinary members of the Australian community.

The alarming reality, if the initial assurances as to the ambit of the anti-terror laws are accepted, is that the community has been invaded. Not by bikies, since they’ve always been there in one form or another. Not by terrorists, either. The community has been invaded by the law.

Assurances from Rees, Rann and co as to the future use or effect of their legislation should be afforded little to no credence. Law and order, in the current political climate, will always trump human rights, and this is difficult to reverse. The political incentive to enact a new "get tough" law, whether it is well thought-out or not, greatly outweighs the incentive to repeal an old one. More to the point, old laws provide a very solid foundation for the creation of newer, more draconian ones. It is a classic slippery slope, and one which we are already sliding down. We cannot rely on effective opposition, since the political capital gained from standing up for long-standing principles is easily defeated by the short-term fear of appearing "soft on crime".

If there was ever a more concrete justification for the introduction of a bill of rights in this country, or at the very minimum in NSW a statutory charter similar to that enacted in Victoria and the ACT, I cannot think of one.

Such a bill would be very valuable right now, helping to ensure that intelligent debate regarding the implications of new laws on civil freedoms and human rights extends beyond a cry from the sidelines as dangerous legislation is driven through.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.