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Terrorism laws an inferior copy

By George Williams - posted Monday, 7 November 2005

After the London bombings in July, it comes as no surprise that the UK, like Australia, is in the midst of heated debate about new terror laws. These debates cover the same ground because the new Australian law is largely based on UK precedents. Indeed, John Howard has sought to justify our new law on the basis that it represents “best practice” from overseas.

I have spent the last eight weeks in London looking at the UK laws. I have also seen how present the threat of terrorism is there, and the fear that many people still feel. On the tube, some Londoners still shy away from sitting near someone who they think looks suspicious, while my bus trip each day takes me down the same route as the London bus that was bombed. Given also that terrorism is ever present in the media, it never seems far from people’s thoughts.

Despite this, and the lower threat level in Australia, I have been struck by how much better the UK is doing in confronting the need for new laws. While both Howard and Tony Blair are resolute in their desire to get new laws through parliament, it seems likely that our new laws will be inferior to those we are copying from and that we risk doing greater damage to our democracy and fundamental liberties.


A key difference is that Australia is looking to copy new powers like control orders and preventive detention from the UK without their most important safeguards. UK law is read in light of their 1998 Human Rights Act, which sets out the basic standards of liberty that are needed for a democracy. As the House of Lords, their top court, demonstrated last year, the Act can be a powerful tool in ensuring that terrorism laws do not undermine the very values that they are meant to protect.

On the other hand, as the only democratic nation in the world without a Bill of Rights, Australia looks set to pass UK-style terror laws but without the same protections. While UK laws will be used by police and other agencies within a framework that respects basic rights, no such limitation will apply in Australia. The best that we can do is to trust that our politicians and government do not abuse their new powers. This is not a safeguard that is acceptable in any other like nation.

Another major difference is that the UK is engaging in the parliamentary debate that Australia ought to have. The UK Terrorism Bill was introduced into parliament in mid-October and is being examined by the Joint Committee on Human Rights. This week I attended one of its hearings, where its members from across the political spectrum grilled the minister in charge of the UK Bill, Home Secretary Charles Clarke. He was asked whether the Bill was needed given the extensive laws already in place, whether the definition of terrorism was so wide that it might criminalise legitimate acts of resistance, whether banning speech that might encourage terrorism would shut down public debate and even whether the Bill might have unintended consequences, like applying to animal rights activists.

The same questions need to be asked in Australia. After all, the Australia law, like its UK counterpart, promises to realign our legal system by giving far more extensive powers to government to intrude into our lives and to restrict our freedom of speech. As in the UK, central to public debate about such issues is the need for effective scrutiny by a parliamentary committee. Until control of the Senate changed to the government on July 1, this was the accepted way of making sure that contentious laws were properly checked and debated. It was also a way of dealing with the complex constitutional issues raised by such laws.

This was the lesson learnt over 2002 and 2003 when major terrorism laws last came before the Federal Parliament. At that time, the Bills were analysed and debated over a period of months, and in some cases by more than one parliamentary committee. This led to important changes, many of which had bipartisan support. It also gave us strong laws that are more likely to survive High Court challenge. Indeed, one year after September 11, Howard said that “through the great parliamentary processes that this country has I believe that we have got the balance right”.

If the aim is to get new powers in place by Christmas at the cost of having a proper committee inquiry and parliamentary debate, Australia risks passing the wrong law. It may even be that, in our haste, we introduce and pass a new law before the UK has finished considering theirs. This may mean that we enact the original UK proposals without picking up their improvements that better balance national security and individual liberty. We may end up with a second rate law that, after the London bombings, not even the UK would pass.

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First published in The Age, The Courier-Mail and the Sydney Morning Herald on October 27, 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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