Our Terror Laws Are Being Tested


Terrorism strikes at the heart of some of our most basic human rights and undermines many of the fundamental tenets of a democratic society. It infringes upon the right to life and the right to individual security, and more generally, it promotes a climate of fear and suspicion, and has been shown to divide communities down ethnic and religious lines. In addition, most people struggle to come to terms with the notion that an ideological goal can be achieved through the use of indiscriminate violence. For these reasons, when brought to the surface it inevitably produces a strong and often emotional reaction from the public.

Nonetheless, the obvious need to respond to threats of terrorism also raises important issues regarding the rights of the accused, the conduct of investigations, and the discretion available under the terrorism legislation.

We need to ask ourselves: Do we have the systems to keep our terror laws in check?

I have been scanning the news articles over the last 48 hours concerning the arrest of four suspects allegedly involved in a plot to attack the Holsworthy Military Base in Sydney. The thing that has struck me has been the distinct lack of useful information on the situation, particularly in light of the bizarre fact that the Australian newspaper had the best part of a week to get their act together on the subject.

Despite the apparent success of the raids, the NSW Police Commissioner Andrew Scipione appeared to be equally foggy on the specifics. On the timing of the raids, he said an attack was "likely imminent". "My advice is that it could have happened at any time. Now, within days, within weeks, within months is imminent to me … Whether it was minutes or whether it was months it doesn’t matter. It was finished.”

This is certainly the most expansive construction of "imminent" I have ever come across.

Perhaps the lack of good information is a product of the digital age we live in — reasoned analysis will rarely quench our thirst for a constant stream of information, and plenty of it. The vague reporting was more likely a result of restricted media access to information about Tuesday’s events. I struggled to even ascertain what crimes (if any) the men had been charged with.

Not that it matters for the time being. The raft of legislation is extremely broad. In addition to actually engaging in a terrorist act, or possessing documents or things relating to a terrorist attack, or undertaking terrorist training, division 101.6 of the Commonwealth Criminal Code makes it an offence to intentionally undertake "any act in preparation for, or planning, a terrorist act". Attempts to undertake any of the above are criminalised under division 11.1.

The inclusion of an "attempt to prepare" scenario is a novel concept, as it is naturally much easier to prove with circumstantial evidence. In my mind, the most worrying aspect of these laws is their ability to criminalise otherwise lawful activity, especially in circumstances where the intentions of the accused may be ultimately impossible to carry out.

Still, Kevin Rudd, federal Attorney-General Robert McClelland and company have never balked at taking a blunt instrument to a sharp object to ensure that it is easier to digest. Enacting vacuous (insert numeral here)-Point Plans and saddling riskier initiatives with sterile, euphemistic slogans have become the trademarks of the Government. They have become the masters of "similar difference".

True to form, after swiftly hosing out the private member’s bill introduced by Liberal MP Petro Georgiou in mid-2008 which sought a review of the terrorism laws, in December last year the Government flagged its own scheme to empower a new office, the "National Security Legislation Monitor", with the job of reviewing the existing raft of terror laws in Australia. A bill of the same name was introduced in June 2009. McClelland followed it up last month by a mind-bogglingly trivial proposal for a "Lexicon of Terrorism Program", which seeks to examine the use of language in terrorism-related dialogue by the Government and in the media. I am not quite sure whether the latter proposal is simply another step in another obscure 12-point plan, but I suspect this is the case.

However, while the "Monitor" sounds more like a docile lizard than a tough, independent watchdog, dour names can be deceiving. There is a similar initiative in existence in the United Kingdom: the independent reviewer of terrorism laws, which has enjoyed some success. While the present independent reviewer, Lord Alex Carlile of Berriew, QC, has expressed a somewhat disturbing zealotry for control orders, he is an accomplished lawyer and the existence of an office charged with the authority to review rashly enacted legislation has provided a level of comfort in the circumstances.

In Australia, the case of Zeky Mallah, the Dr Haneef debacle and Justice Anthony Whealy’s judgment in R v Lodhi exposed some of the inherent problems with the anti-terror legislation. The laws were largely enacted under intense pressure, most famously exemplified in 2002 when opposing Labor and Liberal MPs, embroiled in an epic debate, hysterically threatened their counterparts that any Australian blood spilt by a terrorist attack on Australian soil would be on the other side’s hands. Throughout this there has been a rampant denial of due process and the defendant’s rights at trial. Moreover, as Justice Whealy observed, the National Security Information Act "gives the appearance of having been drafted by persons who have little knowledge of the function and processes of a criminal trial".

The Monitor, therefore, was a very promising step in the right direction for this area of the law. In truth, it should have been implemented at the same time as the original laws. Under the bill which established it, among other duties, the Monitor is required to consider whether Australia’s counter-terrorism and national security legislation contains appropriate safeguards for protecting the rights of individuals. The Monitor must also consider if these laws remain necessary to protect Australians from the threat of terrorism and terrorism-related activity.

Yet it is possible that the Monitor suffers from a visibility problem. The hysterical press explosion following Tuesday morning’s events far outstripped the coverage given to the introduction of the Monitor legislation in June, which barely registered a blip on the newsfeeds.

In my view, the disparity is worrying. Public fear and loathing have an incredible ability to dictate political action (or inaction) in the realm of terrorism law. It would be a travesty if their low sensationalist value meant that there was not the political will to make the most of these positive legislative developments. It would be worse still if they were so underused that they were not able to prevent the development of an even more draconian regime. The need for an active Monitor is clear, since in light of messages like that sent by Scipione’s remarks, we cannot rely on the police and ASIO to take a restricted view of what they can do under the anti-terror legislation.

In the absence of a charter of rights in Australia, an intelligent and ongoing review of Australia’s terrorist laws is vital to their continued credibility. Such a review would neither excuse nor advocate violent jihad by any stretch of the imagination. Nor is it inconsistent with maintaining Australia’s strong stand against terrorism.

The due process rights of accused persons are a fundamental pillar of the moderate, civilised society we want to protect. Preserving those rights demands a robust system of non-partisan monitoring — particularly when laws are rushed through parliaments in response to media-fuelled public outrage.

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