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Perspective on anti-terror laws

By Gary Brown - posted Tuesday, 8 November 2005

The growing concern about the Government’s new anti-terror laws needs to be placed in some kind of perspective.

I take it no-one denies that terrorism is a real threat. We all know about September 11, 2001, Bali 2002, Madrid, and both London and Bali this year, as well as the procession of terrorist incidents in the Middle East and on the Indian subcontinent. In fact, I fear it is only a matter of time before something worse than anything we have yet endured will happen.

Many argue that the best way to deal with terrorism is “at the source”. I certainly agree that this is an essential component of any counter-terrorist strategy. But it cannot be the only component. Such an approach requires time, and probably a lot of it. In the Middle East, for instance, at a minimum it involves: settling the Arab-Israeli dispute to the satisfaction of all concerned; putting an end to the unhealthy influence of violent religious fanaticism (as in al-Qaida or extreme fundamentalist Judaists like the assassin of former Israeli Prime Minister Rabin); and political and economic reform in a number of major Arab and Islamic states. These things are not going to happen quickly.


Until “at the source” strategies take effect, terrorist acts will continue and we must address that problem in the shorter term as well. This clearly requires action in the areas of intelligence collection and assessment, and of law enforcement. It is the latter I want to address here, especially in the context of the Government’s proposed anti-terror laws.

The laws, as far as we have been allowed to know them (courtesy of ACT Chief Minister John Stanhope), are radical. At one stage they even contained expanded “shoot to kill” powers, though on that point wiser counsels have prevailed and police will continue to rely on existing law and precedent in that area.

But they contain provision for detention without trial, (“preventative detention orders”) and for lengthy periods of house arrest (“control orders”), with no reason being given to the persons so detained. They make it an offence to tell someone that you are subject to one of these orders. A “control” order expires after 12 months, but can be immediately renewed. So it would be possible under these laws to keep someone under secret house arrest without explanation for years.

This is not the first time an Australian government has sought to use repressive measures - support them or not, it is clear they are repressive: the issue is whether that can be justified - against a perceived threat. In 1951 the Menzies Government sought to make illegal a political party (the Communist Party). Under this legislation a committee of five could declare a person to be a communist, and the person could then be detained, though having committed no other illegal act. To get the declaration revoked, the person then somehow had to legally prove he or she was not a communist. The offices and assets of the Communist Party itself could be seized. In this case, a High Court challenge overthrew the law, and a subsequent attempt to amend the Constitution by referendum to give the law effect was defeated.

The proposed anti-terror laws in their own way again threaten our freedom. A state which practises detention without trial, house arrest and non-disclosure under criminal penalties of even the fact, let alone the reason, for such actions is perilously close to the top of a slippery slope leading to authoritarian rule. We have already seen in Britain the consequences of attitudes underlying the proposed laws - an innocent person publicly gunned down by police on mistaken suspicion. How much more likely, given that police do not lightly resort to guns, is it that innocents will be detained, interrogated, even placed under indefinite house arrest on mistaken suspicions? The widespread abuse of arbitrary detention powers by the Immigration Department reminds us that the practical effects of laws can exceed even the worst intentions of those who framed them.

It is ironic that the Federal Police Commissioner Mick Keelty, in arguing the need for new laws recently, highlighted a fundamental flaw in the reasoning for them.


[The] ones who are covered by it are people who do fit the intelligence picture that's been fed to us either through our own sources or other sources and about whom we don't have enough information to make an arrest and who decide not to co-operate with the police in terms of being stopped … And if people or if the police have sufficient evidence of course they can charge. But where they don't have sufficient evidence and need to protect the community, then we need a different power than what we've already got.

Thus, police will act on their evaluation of intelligence, both local and foreign-sourced, in seeking orders under these laws. But what if the intelligence is wrong? Bear in mind that as recently as two years ago bad foreign-sourced intelligence led Australia into a major war which proved unjustifiable in the terms on which it was promoted.

The story of the defeat of the 1951 referendum is instructive. The Labor Party was divided over the issue. It allowed the legislation through the Senate, which it then controlled. But then its leader, Dr H. V. Evatt, took command of the question. Almost single-handedly he led the “No” campaign in the referendum, dragging the Labor Party behind him, and in just four weeks turned a 73 per cent “yes” vote (according to polls at the time) into a narrow “no” majority. It is not saying too much to suggest democracy in Australia was saved that day; we turned from the road taken by apartheid South Africa, Malaysia, Indonesia and other states, and remained a free people.

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About the Author

Until June 2002 Gary Brown was a Defence Advisor with the Parliamentary Information and Research Service at Parliament House, Canberra, where he provided confidential advice and research at request to members and staffs of all parties and Parliamentary committees, and produced regular publications on a wide range of defence issues. Many are available at here.

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