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Fix-it later legislation no way to govern

By George Williams and Andrew Lynch - posted Wednesday, 17 January 2007

In 2006, terrorism was never far from the headlines. Faheem Lodhi was jailed for 20 years for preparing for an attack, while Jack Thomas had his convictions quashed on appeal, but then found himself subject to a control order and sent back for retrial.

While terrorist attacks occurred daily in Iraq and also in places such as Mumbai, there was no bombing on Australian soil. This has not just been a matter of good fortune. We ought also to be grateful for the continued effectiveness and vigilance of those charged with our protection.

Our law enforcement and intelligence agencies bear responsibility for keeping the community safe. Another key actor is the commonwealth government.


The Howard Government has approached the challenge with gusto. In part, that was vitally necessary given the lack of any national laws dealing with terrorism at the time the twin towers fell.

Even so, few people are aware of just how many laws have been passed since then. Since 9-11, the commonwealth has enacted 41 new pieces of legislation on terrorism, or about one new law every seven weeks. This continued right through 2006.

Even though such laws were needed, they have often been enacted with undue haste. This has left too few opportunities for debate and refinement, and as a result the statute book is rife with problems.

Law-making got off to a bad start in 2002 when the first important bill passed through the House of Representatives the same day it was introduced. Fortunately, the Senate then spent three months debating and amending it. As a result, the terror laws enacted in 2002 and 2003 reflected John Howard's comment that "through the great parliamentary processes that this country has I believe that we have got the balance right".

Things went wrong after the Government gained control of the Senate in mid-2005. The July 2005 bombings in London led to a frenzy of law-making. Australia suddenly needed control orders, preventive detention orders and, most controversially, a modernised law of sedition. A bi-partisan senate committee, after a hurried inquiry, recommended many changes. Nevertheless, the law was passed with most of their recommendations overlooked by the Attorney-General.

The sedition law only got through parliament over the objections of high-profile members of the Government, such as Malcolm Turnbull and senator George Brandis, by Attorney-General Philip Ruddock agreeing to hold an inquiry after its enactment. This bizarre form of law-making - pass a flawed bill and fix it later - led to a referral to the Australian Law Reform Commission.


Law-making in this style seems since to have become habit. Another significant law passed in 2006 gave ASIO the power to intercept the telecommunications of innocent people. There was little public debate about the change, owing in part to the Government rushing the bill through parliament.

It did so by ignoring safeguards recommended in a joint report of Coalition and Labor senators. Just before the law was passed, Ruddock told parliament that the Government would continue to consider the report "as part of its ongoing commitment to ensuring the regime achieves an appropriate balance".

This abridged, incomplete process of law-making is another example of the worrying trend of enacting anti-terror legislation in haste without proper scrutiny or debate.

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Article edited by Susan Prior.
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First published in The Australian on December 28, 2006.

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About the Authors

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.

Andrew Lynch is the Director of the Terrorism and Law Project at the Gilbert + Tobin Centre of Public Law, UNSW.

Other articles by these Authors

All articles by George Williams
All articles by Andrew Lynch

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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