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A tussle between idealism and pragmatism

By Mirko Bagaric - posted Wednesday, 14 June 2006

You get to bounce back pretty quickly from being placed on a control order or detained for a week or so in a five star Australian jail (even if such orders turn out be unjustified) but victims of bomb blasts almost never recover. Thankfully, we have a federal government that’s switched on enough to accept this obvious balancing exercise.

Not so misguided civil liberations, who six months after the Federal Government mercifully rammed through the counter-terrorism laws through parliament are still whingeing that the laws threaten our way of life.

The only people whose way of life is being threatened are potential terrorists. Notably, more than 20 people have been arrested on terrorist related offences and not one of the counter-terrorism powers has been abused by government officials since the law were passed.


Now that the dust has settled it is important to reflect on the political and social dialogue that occurred in the months leading up to the passing of the laws. This will ensure we are better placed in the future to deal more expeditiously and less divisively with future government interventions that place the common good above individual freedoms.

Rights worshipping civil libertarians failed to recognise that the supposed draconian measures introduced by the laws were not oppressive. Rather they are, on balance, measured responses to a new type of risk. Terrorism differs from your garden variety crime in three ways.

First, in the case of terrorism the victims are selected at random, meaning that everyone is potentially at risk.

Second, people who are willing to blow themselves up are almost impossible to stop during the course of an offence. The only defence is to catch them in the planning phase.

Finally, the potential devastation from a terrorist attack massively exceeds the fall out from traditional criminal behaviour.

Control orders, detention without trial and sedition provisions were the government’s response to this new risk.


Despite the claims that these measures “spell the end of our hard won civil liberties” and “corrupt democracy”, opinion polls consistently showed that the community supports the changes.

Fortunately, we saw that it is not easy to con the normal punter with the use of grandiose high sounding phrases. The community knows that emotive phrases are often mere puff and that when individual rights clash, we must choose the path of harm minimisation thereby promoting the common good.

Further, there was nothing new about the counter-terrorism provisions. Rather they merely extend existing measures to meet the bigger risk. Claims to the contrary were widely exaggerated.

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About the Author

Mirko Bagaric, BA LLB(Hons) LLM PhD (Monash), is a Croatian born Australian based author and lawyer who writes on law and moral and political philosophy. He is dean of law at Swinburne University and author of Australian Human Rights Law.

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