Knee-jerk law making

This year marks the fifth anniversary of the September 11 attack and the beginning of the “war on terror”. It is time that we took a step back to assess the successes and failures of the new laws we have enacted in response.

Until September 11, Australia had no national laws dealing with terrorism. It and other forms of political violence were dealt with by the ordinary criminal law. Since the attacks we have passed a litany of new laws.

Since March 2002, when the first bills were introduced into the Federal Parliament, we have enacted 29 new terrorism laws, or a new law around every seven weeks. This does not include the additional laws passed by the states and territories. The pace of change has not slowed in 2006, with legislation already in the Federal Parliament dealing with matters such as the interception of emails.

New laws were needed to deal with terrorism. A legal response was required to signal that as a society we reject such violence and to ensure that our police and other agencies have the powers they need to protect the community. Laws were also needed to fulfil our international obligations as a member of the United Nations.

Governments across Australia deserve credit for recognising this. In hindsight, our legal system prior to September 11 reflected complacency about the potential for political violence in Australia and the region. By contrast, New Zealand has had terrorism laws in place since 1987.

While we need anti-terror laws, they must be the right ones. Unfortunately, our new legislation suffers from serious problems. This is not surprising given that it runs to hundreds of pages and the speed with which it has often been enacted. To go from no federal law to a comprehensive and complex regime in just a few years was always going to be difficult.

Our new laws have realigned our legal system through the extensive powers they grant to government and their impact upon our liberties. The scope of the shift is unprecedented in Australian history. The new laws define terrorism, itself a problematic task, and establish an array of new criminal offences with severe penalties. These include offences for planning or carrying out a terrorist attack or even for possessing a “thing” connected with such an attack.

We also have laws for the detention and house arrest of Australians without charge, and for the banning of organisations and the jailing of their members and supporters. The law even restricts what can be said in open court as part of a person’s defence and, through new sedition laws, what can be said in public.

ASIO also has important new powers, such as to have non-suspects detained for up to seven days to force them to reveal anything they know about terrorism. There is no right to silence, and failing to answer ASIO’s questions is punishable by up to five years in prison. It is a crime, for two years after someone has been held, to disclose “operational information” about the detention. The penalty for doing so is imprisonment for up to five years, even if the information is provided as part of a media story exposing problems with the regime.

No other like nation has such a law. Even in the aftermath of the attacks in New York, Madrid and London it has not been proposed there that an intelligence organisation be able to have citizens not suspected of any crime detained in secret for questioning, and then jailed if they fail to co-operate.

The problem with our terrorism laws lies not only in their scope and operation, but also in how they have been made and debated. These systemic issues must be addressed if we are to avoid repeating the errors of the past four and a half years.

First, laws have been made without sufficient justification that the change is needed. New anti-terror laws should be passed only where the argument for it has been powerfully made so as to justify it as a means of dealing with a specific identified problem.

It is not surprising that our political leaders, as members of parliament and law-makers, have turned to new laws as a front-line response to terrorism. New legislation is at least within their control and is a symbolic and potentially practical response. However, while our political leaders may want to be seen to act in response to the attacks that have taken place, we need to be realistic about what new laws can achieve.

New laws cannot provide long-term solutions. Legislation is unlikely to tackle the causes of terrorism, nor to deter a terrorist from a premeditated course of action. Further, law-making may direct attention away from the debate over other, more effective, responses. As the drivers of change after a terrorist attack, grief, fear and political opportunity are some of the worst possible motivations.

Second, our response after September 11 has been essentially reactive. The rush to legislate after an attack has been a hallmark. Each new attack and set of disturbing images has meant one or often several new laws. However, by itself, an attack does not mean that the government needs new powers. This can only be determined after careful scrutiny of our existing laws in light of what can be learnt from the attack.

Unfortunately, new laws have been made with such haste that a careful assessment of where we already stand has been impossible. The laws passed after the London bombings were enacted so quickly that they have come into force before two ongoing inquiries into the effectiveness of our existing laws can report. Before the 2005 attack, neither the government nor its key agencies were putting the case for change to the law or an expansion of their powers, yet after the bombings the pressure for this proved irresistible.

The cycle of an attack followed by a new law is dangerous. Driven by fear and the need to act, we run the risk of an ongoing series of over-reactions. This is the dynamic that terrorists rely upon. What they cannot achieve by military might, they seek to achieve by stimulating our fears. By our own actions we may isolate and ostracise members of our community, who instead of assisting with intelligence gathering may be susceptible targets for terrorist recruitment. Through our over-reactions and short-term thinking, we may actually make ourselves more vulnerable to terrorist attack.

Third, the process of making the new laws since the London bombings has been deficient. The laws over 2002 and 2003 were debated in the media and parliament over several months and, in some cases, were analysed by more than one parliamentary committee. This led to many important changes that had bipartisan support. It gave us strong laws more likely to survive High Court challenge. Indeed, on the first anniversary of September 11, Prime Minister John Howard said that “through the great parliamentary processes that this country has I believe that we have got the balance right”.

By contrast, with control of the senate secured from July 1, 2005, the prime minister sought to rush through new laws after the London bombings. He wanted to have the laws in place by Christmas at the expense of a proper inquiry and public debate. However, the release on the internet of the draft law by ACT Chief Minister Jon Stanhope provided greater than expected opportunities for debate and more time was also given due to the laws being constitutionally suspect. Nevertheless, the process was severely truncated.

The laws were still passed by Christmas in lightning fashion for legislation of such importance dealing with subjects as diverse as sedition and the preventative detention without charge of Australian citizens. Remarkably, the compromise on sedition laws involved an immediate inquiry after their enactment into whether they need to be fixed and also whether new sedition laws are required in the first place. Holding such an inquiry after the laws have been put on the statute book is one of the more bizarre and unfortunate aspects of how our terror laws have been made.

Fourth, we have lost sight of the need for balance between our national security and fundamental freedoms. The object of the laws cannot be national security at all costs. The goal should be to protect the community from terrorism while ensuring that we retain the freedoms that make Australia the country it is. This involves some give and take.

Some basic rights like privacy should be limited in appropriate circumstances to ensure that our police and intelligence services can deal with a threat. On the other hand, other changes cannot be justified because they disproportionately undermine democratic principles. The new sedition laws are an example. They imprison people for what they say rather than for what they do, arguably for little gain in preventing a terrorist attack. We should not damage our democracy and liberties in this way in the name of defending them against terrorism.

Australia is especially vulnerable to this. As the only democratic nation without a national bill of rights, we must rely upon the parliamentary process (a frail shield at present) or the good sense of our political leaders. These are ineffective checks at a time of community fear and, in any event, are not safeguards that are now regarded as sufficient in any like nation. While it is encouraging that the ACT now has a Human Rights Act and that Victoria has announced that it will enact a Charter of Human Rights and Responsibilities, protection for our speech and other rights is also needed at the federal level.

Fifth, public debate on our laws is often not based upon a realistic assessment of the risk and an understanding of the limits of the law. There has always been and will always be a risk of a terrorist attack. If the goal is to eliminate that risk, we will fail.

The law, no matter how stringent, cannot guarantee our security. Moreover, as history shows, the more repressive or draconian the law, the more that some people will be likely to take extreme action. The law can thus also become part of the problem that we are seeking to mitigate.

It is natural that our fears will lead us to do all that we can to protect ourselves and our families, especially in response to a faceless and unknown threat like terrorism. With a recent poll finding that more than two thirds of Australians believe that terrorists will strike “before too long” and that a terrorist attack in this country is inevitable, it is not surprising that there is great pressure to enact new laws at any cost.

What we need is leaders who, rather than playing to our fears, help us to understand that we must accept a level of risk of terrorist attack. There is no other option. If we strive for the illusory goal of full protection from terrorism, we risk doing even greater damage to our society and its freedoms and values. This will also warp political debate, policy choices and resource allocation in ways that cannot be justified.

We risk repeating these same mistakes if we do not change course. Unfortunately, there is no currently sign that this will occur. New attacks will lead to new laws that will further erode our fundamental freedoms, increase fear and anger in parts of the community and make the problem more intractable.

It seems likely that in the last four and a half years we have seen only the beginning of the “war on terror”. The laws we have today were unthinkable prior to September 11. It is equally hard to imagine the laws that we will end up with in the event of future attacks.