On Sunday, Tony Abbott signalled a shift in the political focus back to national security issues ahead of a major speech on the subject next Monday. That followed his graphic detailing under parliamentary privilege of the allegations against two men recently arrested for terrorism crimes. And the government’s data retention bill is still the subject of negotiation with Labor and the Senate crossbenchers.

There is a lot to be said for taking a step back from the flurry of law-making, raids and arrests, as well as the tragic siege in Sydney’s Martin Place, which marked the last months of 2014 and thinking about Australia’s terrorism response more holistically. What have we done in the years since September 11? What has worked and what needs revisiting? Have we ensured that security has strengthened rather than fractured our diverse community?

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The need for human rights safeguards

Australia is the only democratic nation without a national human rights law such as a human rights act or bill of rights. The absence of this check upon government power has had a major impact on the making and operation of Australia’s anti-terrorism laws.

Many of these laws were made as a reaction to terrorist attacks that provoked anger, fear and grief in the community. It is not surprising that at such times people looked to their political leaders for a determined response, including action that may be disproportionate to the threat due to its impact on democratic liberties. This dynamic is well known, and was well stated by Alexander Hamilton, one of the drafters of the United States Constitution, in the late 18th century:

Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.

In these circumstances, legal protection for human rights can play an important role. It can provide a yardstick against which to assess the proposed new anti-terrorism laws, and can remind the community of important democratic values at times of stress.

Even if such standards are put to one side in the face of overwhelming pressure for “tough laws” that “do whatever it takes” to stop a future terrorist attack, they can play a significant role after the laws have been enacted. For example, courts may use human rights standards to limit the impact of anti-terrorism laws on things like privacy and free speech, or, where these standards are contained in a constitution, they may be applied to strike down inconsistent legislation. Another benefit of human rights protection may be that it can provide a trigger for governments and parliaments to revisit the laws down the track, once emotions have cooled. This may occur in response to judicial decisions or through a fresh assessment by a government recognising the value of protecting democratic freedoms.

An example is the decision of the UK government to remedy some of the more problematic aspects of that nation’s anti-terrorism laws. After the 2010 election, the home secretary, Theresa May, initiated a review of the UK’s “most sensitive and controversial security and counter-terrorism powers”. The review found in January 2011 that some “counter-terrorism and security powers are neither proportionate nor necessary”. It recommended reforms including halving the maximum period that a terrorist suspect can be detained before charge, and replacing control orders with a less intrusive regime. In response, the home secretary recognised that the threat from terrorism “is as serious as we have faced at any time and will not diminish in the foreseeable future”. Nevertheless, she committed the UK government to correcting “the imbalance that has developed between the state’s security powers and civil liberties”. Reforms based upon the report, including those with regard to control orders, were enacted in 2011 and 2012.



Australia lacks a legally enforceable domestic reference point on human rights

By contrast, Australia lacks a legally enforceable domestic reference point on human rights to assist in the making of its anti-terrorism laws or to assess those laws once enacted. The most we have is a law passed by the Australian parliament in 2011 which enshrines a new procedure whereby bills are scrutinised in light of international human rights treaties. However, such treaties are not binding, and even where scrutiny by the parliamentary joint committee on human rights points out problems, its findings may be ignored.

The result in Australia is a body of law that undermines democratic freedoms to a greater extent than the laws of other comparable nations, including nations facing a more severe terrorist threat. For example, it would be unthinkable, if not constitutionally impossible, in nations such as the US and Canada to restrict freedom of speech in the manner achieved by Australia’s 2005 sedition laws. It would also not be possible to confer a power upon a domestic intelligence agency that could be used to detain and coercively question non-suspect citizens. No other democratic nation has vested such an agency with a power like that which the Australian government has conferred upon Asio.

Facebook Twitter Pinterest ‘it would be unthinkable in nations such as the US and Canada to restrict freedom of speech in the manner achieved by Australia’s 2005 sedition laws.’ Photograph: AAP

The absence of a human rights act in Australia has also meant that the operation of anti-terrorism laws copied from other nations occurs without the systemic safeguards in place in those nations. An example is the UK’s control order regime, which was adapted to Australia and passed by parliament in 2005. The UK scheme was subject to the protections of its Human Rights Act 1998 (UK). Over the course of several decisions, the UK’s courts have applied that act to impose constraints upon the use of control orders. Similar limitations upon the use of control orders are not available in Australia. Moreover, the move in the UK to repeal its control order regime in favour of a less invasive mechanism has not been followed in Australia. As a result, Australia retains a control order regime copied – without the broad safeguards that govern the original – from a country facing a greater threat from terrorism, and which has since replaced that regime on the ground that it amounted to a disproportionate abrogation of human rights.

The central challenge in enacting anti-terrorism laws is how best to ensure the security of the nation while also respecting the liberty of its people. In democratic nations, the answer is usually grounded in legal protections for human rights. By contrast, in Australia, the answer is provided almost completely by the extent to which political leaders are willing to exercise good judgment and self-restraint in the enactment of new laws. But as the processes of enactment and many reviews of Australia’s anti-terrorism laws make clear, this has not proved a sufficient safeguard.

A further consequence is that, in the absence of countervailing human rights protections, anti-terrorism laws have created new precedents, understandings, expectations and political conventions about the proper limits of government in Australia. This is reflected in the fact that, over time, anti-terrorism measures have come to be seen as normal rather than exceptional, and as a result have crossed over into other areas of law. An example is the modelling of state anti-bikie laws upon the anti-terrorism proscription and control order regimes. In South Australia, the premier, Mike Rann, justified this by saying: “We’re allowing similar legislation to that applying to terrorists, because [bikie groups] are terrorists within our community.” Anti-bikie laws of this type have now spread throughout Australia, illustrating how anti-terrorism measures may provide an influential addition to the state legislators’ toolbox for showing they are “tough on crime”.

Facebook Twitter Pinterest ‘Some of Australia’s anti-terrorism laws have been almost exclusively applied to members of the Muslim community.’ Photograph: AAP

Law is only part of the answer

Anti-terrorism laws play an important role in preventing terrorist attacks. However, enacting the laws comes with significant costs. In particular, some measures can give rise to a sense of grievance in sections of the community if people believe they have been unfairly ostracised or singled out. This sense can be magnified by heavy-handed use of the laws and over-the-top media reporting. For example, September and October 2014 saw major new anti-terrorism laws debated in the federal parliament and sensational reporting of large-scale raids in Sydney, Brisbane and Melbourne. This led Sheikh Wesam Charkawi, a high school chaplain working in western Sydney, to say:

I work on a daily basis with the youth and what I see at the moment is severe distress regarding the new counter-terrorism laws. The Muslim community feels targeted and besieged. Muslims are almost exclusively viewed through the prism of counter-terrorism laws.

Such concerns are widespread, and can also reflect the fact that some of Australia’s anti-terrorism laws have been almost exclusively applied to members of the Muslim community. For example, despite terrorism being a phenomenon that applies across a range of political ideologies and religions, all but one of the 20 organisations listed by the Australian government are in some way associated with Islamic ideology. Several of these organisations, such as Boko Haram, have no apparent connection to Australia. At the same time, non-Islamic bodies which are classified as terrorist organisations in other nations, such as the Shining Path in Peru or ETA in Spain, are not proscribed under Australian law.

Terrorism as a political strategy requires nations to overreact in their attempts to prevent future attacks.

Community concern about the unfairness and selectivity of anti-terrorism laws can strike at their effectiveness by undermining social cohesion and support generally for Australia’s prevention strategies. This is the dynamic that terrorists rely upon. Terrorism as a political strategy requires nations to overreact in their attempts to prevent future attacks. After all, terrorist action cannot achieve its objects through military might and instead relies upon its goals being assisted by the fear and reactions provoked within a state. Terrorism thus promotes a cycle whereby an attack feeds a reaction that contributes to bringing about a further attack. One way this can occur is by anti-terrorism laws causing resentment and a sense of isolation within a community, so as to assist in recruitment of alienated individuals by terrorists. Resentment and distrust may also mean that parts of the community are less likely to cooperate with the police and intelligence agencies seeking to prevent an attack.

This problem can be met, or at least minimised, by applying anti-terrorism laws fairly and not selectively across the community, and by drafting them in a way that is consistent with accepted community and legal values and human rights standards. However, even where this is done, the exceptional nature of such laws means that there will always be a risk of a community counter-reaction. Justice Whealy – experienced in overseeing terrorism trials – made this point in stating that:

there is some danger that the imposition of stern sentences, no matter that it may be completely justified, has the capacity to inflame resentment and may encourage young Muslim men into an extremist position.

This risk can be pronounced in regard to the handing down of sentences of 20 or more years for people involved only at the very early stages of preparing for what may or may not eventuate as a terrorist attack. As Justice Whealy concluded, the prevention of terrorism requires more than just new laws, and “western countries will have to give attention to the task of developing effective and reliable counter radicalisation strategies.”

Australian governments came relatively late to the realisation that anti-terrorism laws need to be complemented by community-based strategies. The Coalition government first acknowledged the importance of such approaches as early as 2005, and it made some efforts to engage with Muslim leaders and to expand existing policies for building a multicultural society. It was not until 2010, however, that the Labor government developed a more comprehensive national program for countering violent extremism. It did so by recognising the importance of such strategies in a Counter-Terrorism White Paper, establishing a Countering Violent Extremism Unit within the attorney general’s department, and allocating $9.7m over four years for a range of community-based projects. These community-based strategies were designed to “address factors that make people vulnerable to extremist influence”, so as to reduce the potential for a home-grown terrorist attack.

These and other complementary actions play a vital role in preventing terrorism, including by reducing the negative impacts of anti-terrorism laws. In its May 2014 budget, the Coalition government declined to continue funding Labor’s countering violent extremism programs, although in August 2014 it announced that it would invest $64m in similar initiatives. Of these funds, $13.4m will be used to fund community engagement programs, and the remainder will be directed towards countering the threat of extremism posed by fighters returning from Syria and Iraq. At the same time, however, the government has expanded Australia’s counter-terrorism laws in response to those overseas conflicts. It may therefore be some time before Australia is able to achieve a balanced counter-terrorism strategy that gives due weight to liberty and community cohesion in the face of threats to security.

Australia needed anti-terrorism laws in the wake of the September 11 attacks. Those laws were required to protect the community by preventing attacks from occurring. Passing new anti-terrorism laws also enabled Australia to meet its international obligations to thwart global terrorist networks, and signalled that as a nation Australia rejects such forms of political violence.

In the decade since September 11, the Australian parliament has enacted many laws providing for powers and sanctions that were unthinkable prior to the 2001 attacks. Indeed, the overblown rhetoric of a “war on terror” was reflected in the nature and severity of the laws enacted in response to the threat.

Many in the community assumed that these laws were a short-term reaction to the events of September 11 and other attacks overseas. However, it is now clear that they will remain on the Australian statute book for the foreseeable future. This poses a long-term challenge. While there was a strong case for new anti-terrorism laws in the early 2000s, what resulted from the political process diverges in too many respects from the laws that Australia should have achieved. This means that Australia has anti-terrorism laws that are not as targeted and effective as they should be in protecting the community from harm. A further danger in the over-breadth of the laws is that they may, over the longer term, erode the very democratic freedoms that they are designed to protect.

This is an edited extract from Inside Australia’s Anti-Terrorism Laws and Trials by Andrew Lynch, Nicola McGarrity and George Williams, published by NewSouth, $24.99, available now.