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.