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Losing our balance in 'Fortress Australia'

By George Williams - posted Wednesday, 28 September 2005

Yesterday a special meeting of the Council of Australian Governments was held to examine Prime Minister John Howard's proposals to further strengthen our counter-terrorism laws.

Australia does need strong laws to deal with terrorism. The law should make acts of terrorism, as well as preparation for them, a serious crime and should ensure that our intelligence and law-enforcement agencies have the powers necessary to do the job. But this must not be the only objective. The law must also preserve our basic freedoms.

These dual objectives can lead to tension. For example, a law might be needed to allow the police to access emails and other personal information in order to capture terrorists and prevent an attack. This would, however, breach the privacy of individuals. This clash does not produce an impasse, but a need for balance.


Rights are not absolute but they can assist in working out just how far the law should go. In this example, the law can be justified where it is shown that it will help to meet the threat and where it has been drafted to have as little negative effect as possible upon fundamental rights and freedoms. This need for justification and accommodation lies at the heart of law-making about national security for governments and parliaments around the world.

The key problem with Howard's latest proposals is that he has lost sight of the need to balance security and freedom. Just as we should not sacrifice our collective security for the absolute protection of personal freedoms, nor should we turn Australia into a nation that strives for security at all costs. Such a nation, a fortress Australia, would be unrecognisable from the free society in which we now live. It would be a nation in which our own laws, rather than terrorism, had taken away some of our most important and cherished freedoms, including freedom of speech and the presumption of innocence.

While some of Howard's proposals were relatively minor and make sense from a practical point of view, such as providing access to airline passenger information to ASIO and the police, others represent an unprecedented change to our laws. These include the idea of using "control orders" against people who pose a terrorist risk to the community, allowing for the use of tracking devices and for restrictions to be placed on where these people can travel and with whom they can associate. The proposal for "preventive detention" of up to 48 hours (or up to two weeks if the states agree) in a terrorism situation also falls into this category.

These measures undermine the idea that a person should not be subject to the coercive power of the state unless they are suspected of a crime. Once the power of government extends to control orders and the detention of people who might come to be involved in a crime, the arm of the law will reach very far indeed.

A further problem with these measures, and indeed with the package as a whole, is that the case that they are necessary has not been made. The fact of the London bombings is not sufficient. The threat level to Australia, as assessed by the government, has not changed (it remains at medium), nor has new information been made available that would support such a shift in our law. Importantly, we already have many laws that deal with terrorism. A raft of changes has been enacted since September 11, providing, among many other things, for new criminal offences, often with lengthy terms of imprisonment, and for the banning of terrorist organisations and the jailing of members and supporters.

The law has also already been changed to allow longer periods of police detention of terrorist suspects and, in the case of ASIO, for the detention for up to a week of people who may be able to assist with the gathering of intelligence. With such laws in place Australia now has a regime of anti-terrorism laws that is in key respects already stronger than in many other nations. Not surprisingly, before the London bombings the case was not being put for major new measures.


Given the scope of our existing laws, why are new laws needed? The argument has certainly not been made by any review of the law as it stands. Indeed, Howard's proposals have been announced before the report by a joint parliamentary committee into ASIO's powers and a report that is due on the other laws passed by parliament after September 11. It may be that these inquiries will recommend changes, but it is unlikely that they would have put forward anything of the scope being championed by Howard.

The government has sought to justify the new laws as being the "best practice" overseas. That is not correct. Every other democratic nation that has enacted laws in the area has done so as part of a system that balances those laws against fundamental human rights. In Britain, for example, the 1998 Human Rights Act plays this role and when Tony Blair announced new laws after the July 7 bombings he did so by reference to that framework. By contrast, the announcement made by Howard did not make any reference to human rights.

Best practice demands a human rights framework because the danger to liberty and democracy is particularly high with anti-terrorism laws. The Australian definition of terrorism is wide and hard to apply. It is certainly possible that legitimate acts of protest or support for movements in other nations that fight against injustice or oppression will fall into the net. Whether a person is a freedom fighter or terrorist, the Australian law will apply.

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First published in the Australian Financial Review on September 23, 2005.

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About the Author

George Williams is the Anthony Mason Professor of law and Foundation Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales.

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