The end of democracy?

Recently, ACT Chief Minister Jon Stanhope posted the details of Prime Minister Howard’s proposed new anti-terrorism laws on his Internet website. Defending his decision to release the 107-page document, Mr Stanhope argued that the public and the Parliament needed longer to consider the new sweeping proposals than was being allowed for by the Federal Government, especially given their severity and their impact on civil liberties and fundamental freedoms.

The Anti-Terrorism Bill 2005 is indeed one of the most draconian pieces of legislation ever to be introduced into the Australian Parliament and it seems that the Bill goes further than agreed by the premiers and chief ministers at the recent COAG meeting. It allows for people merely suspected of (and not charged with) terrorism-related offences to be held in secret “preventative detention”. Although persons detained may contact a lawyer, any contact between them and their legal representative is subject to monitoring by the authorities.

The Bill also allows for the Government to apply to a court for control orders on terrorist suspects (again without charge). The orders can last up to 12 months and are renewable any number of times. They include house arrest, preventing people using the telephone or Internet and restricting their social contacts and work opportunities. What is morally most disturbing perhaps is the fact that suspects can also be fitted with electronic tracking devices.

Other provisions include powers to imprison people for encouraging the overthrow of government and for promoting feelings of “ill will” or hostility between different groups that would threaten the peace. This means that a simple statement such as “Iraqis have a right to resist occupation” may land people in jail for up to seven years.

Equally concerning, a person commits an offence under the proposed provisions by intentionally giving funds to someone (directly or indirectly) and being “reckless as to whether the other person will use the funds to facilitate or engage in a terrorist act”. The penalty for this? Life imprisonment.

What all the latest proposals have in common is that they abandon fundamental principles of the rule of law: they dilute the prohibition of arbitrary detention, they obliterate the right to adequate legal representation, they remove the ancient right to habeas corpus, they unduly curtail the freedom of speech and they excessively infringe upon the right to liberty.

Whether the new laws actually reduce the threat of terrorism, however, remains questionable at best. What is certain is that the new proposals, in many respects, go further than comparable anti-terrorism arrangements in other Western liberal democracies (including the United States and the United Kingdom).

Mr Stanhope’s courageous and proper decision to release the draconian proposals to the public has been harshly criticised by the Federal Government. After attempts by the federal Attorney-General’s Department to get the draft Bill removed from the Chief Minister’s website had failed, a furious Prime Minister accused Mr Stanhope of being “irresponsible”. Similarly, a spokeswoman for federal Attorney-General Phillip Ruddock found the publication of the draft legislation “disappointing” and argued the document had been provided to state and territory leaders in “good faith”.

The Government’s aggressive response to Mr Stanhope’s legitimate action is unwarranted and unacceptable. And it begs the question: In what kind of democracy are we actually living?

The role of Parliament is to enact laws in the name of the Australian people. But now people are not even supposed to see the legislative proposals anymore. Indeed, it seems that laws curtailing fundamental rights and freedoms of Australian citizens are now to be drafted and enacted with minimal exposure to the electorate and rushed through Parliament without proper public and parliamentary debate.

Rather than bullying Jon Stanhope and trying to push unprecedented laws through Parliament with great haste and secrecy, the Government should allow for an independent review of the proposals. This is exactly what happened in the United Kingdom, where Lord Carlile of Berriew, QC has just released his highly critical report on the proposals put forward by the Blair Government. An independent review would not only improve the proposed legislation but also provide the necessary democratic transparency.

Ruling against the Bush Administration in a recent terrorism-related court case in the United States, Federal Appeals Court Judge Damon J. Keith warned that “democracies die behind closed doors”. In light of the latest Australian anti-terrorism Bill and the Government’s apparent contempt for the processes of democratic debate one cannot help but wonder how much longer Australia’s democracy has to live.