The Howard government's “war on terror” has left a dreadful legacy. In the years after September 11 Federal Parliament enacted 44 anti-terror laws - one new law every seven weeks. No other Western nation comes close to this. Nor, with the exception of the United States, where the problem is being slowly wound back by Congress and the Supreme Court, has any democratic nation transferred so much power to government at the expense of parliament and the courts.
Australia's anti-terror regime runs to hundreds of pages of law. It covers everything from sedition offences that imprison people for words rather than actions, to control orders that permit house arrest, to laws that allow the secret surveillance of innocent people, to ASIO being able to have non-suspects detained to gather intelligence. Many of these powers can be exercised in secret, and where mistakes are made this can sometimes not be reported.
Not surprisingly, national security has assumed front-line importance in the Rudd Government. Debates have emerged, like whether the law should allow employers to monitor employees' emails. Even greater contention has centred on the saga of Dr Mohamed Haneef.
Attorney-General Robert McClelland moved early to establish the Clarke inquiry into the Haneef case. Those who hoped the inquiry would review anti-terror laws have been disappointed. The terms of reference only allow former judge John Clarke to examine deficiencies in the law as it relates to the arrest, detention, charging, prosecution and release of Dr Haneef.
The inquiry was never the right vehicle to explore all the problems with Australian anti-terror laws. This requires a national inquiry, or even royal commission. It should assess Australia's legal response to September 11 as a means to protect the community and to safeguard important democratic rights. While I am hesitant to suggest another government inquiry, we do need a major, independent review of the totality of Australian law on terrorism.
After years of breakneck law-making it is time to take stock and determine where we have gone right and where we have gone wrong. This must not, however, stand in the way of immediate action. Specific parts of the law have been reviewed and need immediate change. For example, the Government should implement the 2006 report of the Australian Law Reform Commission, which recommended that the sedition offences be repealed and replaced with more specific “offences against political liberty and public order”. This was one of Labor's election promises. It should be honoured as soon as possible.
Many other areas of the law need urgent repair. This has been exposed by the sensible recommendations of bodies such as the Security Legislation Review Committee, headed by former judge Simon Sheller, and the bipartisan reports of the federal Parliamentary Joint Committee on Intelligence and Security.
Many of the problems stem from the haste in which Australian anti-terror laws were made. Things got off to a bad start in 2002 when the first major bill was pushed through the House of Representatives on the same day it was introduced. Fortunately, the Senate spent three months debating and amending it. As a result, that law 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 again 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, preventative detention orders and, most controversially, a new law of sedition. A bipartisan Senate committee, after a hurried inquiry, recommended many changes. Nevertheless, legislation was passed with most of their recommendations overlooked.
The sedition law only got through Parliament over the objections of high-profile members of the government by former attorney-general Philip Ruddock agreeing to hold an inquiry after its enactment. This bizarre form of law-making led to the referral to the Australian Law Reform Commission. Its report was never implemented.
Although ready to rush through laws to fight terrorism, the Howard government proved unwilling to repair them once problems were exposed. Offences remain on the books that Howard government appointees found to be incoherent or unenforceable. Bad laws may not only undermine democratic freedoms, they can also compromise the ability of the police to secure convictions and to protect the community from harm.
My starting point has always been that Australia needed new laws to deal with terrorism. Until 9-11, Australia had no national laws on the topic. We needed to fulfil our international obligation to outlaw terrorism and signal that we rejected politically motivated violence.
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