Fix-it later legislation no way to govern

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.

Even then, this might be acceptable in extreme cases if the Government actually fixed its legislation after its passage. It had the opportunity to do this in 2006, but instead failed to act on further reports that have urged changes to the law.

The ALRC released its report into sedition in July. Unsurprisingly, it proposed substantial changes. A key finding was that the term sedition should be eliminated and replaced with more specific "offences against political liberty and public order".

These would only criminalise speech where it can be proved beyond reasonable doubt that a person has intentionally urged others to use force or violence, and intended that this force or violence would occur. Changes were also proposed to protect legitimate forms of communication such as artistic speech, commentary and academic scholarship.

In some respects, notably the urging of violence against racial groups within the Australian community, the commission actually wanted the law made stronger. Yet even in light of the experience of the Cronulla riots this fell on deaf ears.

Similarly, in June the security legislation review committee, established by statute and headed by former judge Simon Sheller, made numerous recommendations about how the key terrorism crimes need to be fixed. The committee found some woefully unclear, and that others operated far too broadly.

Many of the recommendations of this committee have since been endorsed and supplemented by the unanimous December report of the bipartisan parliamentary joint committee on intelligence and security. Each of these bodies has identified significant problems with our anti-terror laws. These undermine their effectiveness and in some cases make the prosecution of terrorists more difficult. Despite this, and in marked contrast to the speed with which the laws were enacted, the Government has yet to act.

This highlights how the Government is not keen to hear, let alone to respond to, constructive criticism about what it has done to date. It also shows how it can legislate on its own initiative, and not with the benefit of the advice of others.

This can produce some odd priorities. For instance, only in November 2006 did the Government announce a discussion paper on controlling access to dangerous chemicals, surely far more important in preventing a terrorist attack than criminalising sedition?

We do need strong anti-terror laws, but these also need to be effective and safe. In 2006, a range of government-appointed experts and a bipartisan committee have identified flaws in these laws. These need to be fixed. Until they are, the Government will have acted in haste without repairing the resulting problems.