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Anti-terrorism reforms put democracy at risk

Date

Professor of Law at the University of NSW

View more articles from George Williams

"The government has overreached in announcing its reforms, which go much further than what is required."

"The government has overreached in announcing its reforms, which go much further than what is required." Photo: Andrew Meares

The Abbott government has embarked on the biggest expansion of Australia’s anti-terrorism laws since the 2005 London bombings. Changes do need to be made. Many laws are in poor shape after being rushed through prior parliaments, while others need updating because of new technology. 

Unfortunately, the government has overreached in its reforms, which go much further than what is required. In fact, the extent to which its changes would extend the powers of government at the expense of citizens is unexpected and quite shocking. 

The first bill is already in Parliament. It allows greater surveillance of computers, grants immunity from prosecution to intelligence officers engaged in special operations, and exposes journalists to jail for publishing even general information about a terrorism investigation. 

These changes are modest compared to what is to come. Further bills will require companies to keep metadata information on calls and internet use, reverse the onus of proof by deeming a person guilty of an offence if they travel to certain locations, and make it easier for government to ban organisations and jail their members based on their speech about terrorism. 

The government also wants to extend three highly contentious regimes from the height of the so-called "war on terror". The first regime enables the Australian Security Intelligence Organisation to question and detain any person, including Australian citizens not suspected of terrorism. They can be held in secret for a week, and jailed if they refuse to answer any question put to them by ASIO. No other democratic nation permits its domestic spy agency to carry out this action.

Under the second regime, control orders can be sought by the government to regulate almost every aspect of a person’s life, ranging from where they work or live, to whom they can talk. A person can even be subject to house arrest. All this can occur without a trial. 

The third regime is preventative detention orders, which permit a person to be held without arrest or charge in secret detention for up to 14 days. The person cannot tell anyone they are being detained, or for how long. They can contact their employer and one family member only to say they are "safe, but not able to be contacted for the time being". 

These three regimes are so extraordinary that Parliament set them to automatically expire after 10 years. This will occur in July 2016 for ASIO’s power, and December 2015 for the other two regimes. 

But the government now wants to make these measures permanent. This holds great dangers for the long-term health of our democracy. For example, allowing innocent Australians to be detained in secret and subjected to coercive questioning by ASIO is more suited to a dictatorship. 

The longer these regimes remain on the books, the more likely they will be used elsewhere. Control orders have found their way into the bikie laws of Queensland and other states. This shows how extreme anti-terrorism measures can prove an irresistible source of ideas for state governments intent on showing they are "tough on crime". 

These schemes might be justified for the short term if they are essential to protecting the community from great harm. However, they have not proved to be effective or necessary in preventing terrorism. 

ASIO has never used its power to detain and no preventative detention order has ever been issued. No control order has been issued since 2007, and the only two ever made were imposed in dubious circumstances upon Jack Thomas and David Hicks. 

Bret Walker, SC, the first independent monitor of Australia’s anti-terrorism laws, has recommended that preventative detention and control orders be repealed, saying that the latter might be redrafted to apply only to convicted terrorists on their release. He was also critical of ASIO’s special powers, saying the agency should lose its power to detain. 

The government has flouted Walker’s recommendations, without giving any reasons why. In addition, it has not appointed a replacement since his term ended in April, and has introduced a law into Parliament to abolish his office. 

In the face of public criticism, the government now says it will retain the office, and will increase its resources. This is welcome, but is nothing but a fig leaf given its willingness to ignore and act contrary to Walker’s findings. 

George Williams is the Anthony Mason Professor of law at the University of NSW

Twitter: @ProfGWilliams

90 comments

  • "Control orders have found their way into the bikie laws of Queensland and other states. This shows how extreme anti-terrorism measures can prove an irresistible source of ideas for state governments intent on showing they are "tough on crime". "

    Obviously governments should not make laws which restrict the operations of Aussie terrorists or outlaw motorcycle gangs. They should be free to undertake their actions until convicted in a court. Imaginine trying to restrict their freedom to do as they wish. That's fascism isn't it.

    Commenter
    The Village Idiot (Reformed)
    Date and time
    August 11, 2014, 6:03AM
    • Zany, I think you will find this aphorism was actually about citizens remaining wary of the things their governments did.

      Commenter
      RichardJ
      Location
      Sydney
      Date and time
      August 11, 2014, 7:03AM
    • "They should be free to undertake their actions until convicted in a court. Imaginine trying to restrict their freedom to do as they wish"

      Hi,

      Nobody is free to break the law, but all are to be assumed innocent until proven guilty and no-one should be assumed to be guilty of a crime that has not yet been, and may never be, committed. No one should be detained without access to lawyers or without the knowledge of friends or family.

      On the other hand, serious allegations, like those of burned hands by the RAN, should be properly investigated.

      Commenter
      Ross
      Location
      MALLABULA
      Date and time
      August 11, 2014, 7:57AM
    • @ Ross,

      So about 200 Australians engaging in sectarian violence overseas and coming back to Australia, should be given the benefit of the doubt.

      Sure, just let them be and when there is an act if terrorism on Australian soil, just blame the government for not doing enough..

      Commenter
      Frank
      Date and time
      August 11, 2014, 9:55AM
    • After hearing this gov in the media and seeing the articles in the news about so-called KGB agents, I feel like I've been transported back to the 50s...it's all very freaky..

      SBS had a documentary on a few months or so back about how asio was invented and most of their work seem to involve spying on political oppositions to the libs, and anyone in the community that was a threat to their political ideals........and they say russia is bad!!!

      And so i see all the 'terrorist' yap as another way for this polly party to control the masses to get what they want once again....so 2 more years it seems of reds under the beds, and of course there most definetly is nutters out there that want to do bad things, but it's obvious to me that some of these nutters seems to play into some polly agenda of others......

      Commenter
      UFO
      Date and time
      August 11, 2014, 10:04AM
    • On the other hand, here's what the LNP's "Real Solutions" Policy Booklet promises for us before the last election: "The Coalition will ... deliver a strong, stable, accountable government ...
      "We will restore accountability and improve transparency measures to be more accountable to you."

      Well, we've got nothing to hide, so have nothing to fear; with this legislation, what does the LNP have to hide?

      Commenter
      David Arthur
      Location
      Queensland
      Date and time
      August 11, 2014, 10:13AM
    • hi Frank - there is a difference between giving them the benefit of the doubt and detaining them.

      Commenter
      Ross
      Location
      MALLABULA
      Date and time
      August 11, 2014, 1:03PM
  • Eternal .vigilance is the price of freedom. If you are suspected of wrong doing you will be forced to explain what you are about. If we don't have strong deterrents these would be terrorists will keep on looking for ways to strike. Knowing they are under surveillance IS a deterrent . This is a step in the wright direction from a government that hasn't done much right. Freedom doesn't just happen and there are enough idiots out there that think they should be making the rules. No Way.

    Commenter
    Zany
    Location
    Central coast
    Date and time
    August 11, 2014, 6:30AM
    • So being under constant surveillance, having all your communications constantly monitored, being treated as guilty unless proven innocent, is your idea of "freedom"?!?

      As the oft paraphrased quote attributed to Benjamin Franklin goes "those who give up freedom for security deserve neither".

      Commenter
      rob1966
      Date and time
      August 11, 2014, 7:54AM
    • Hi Zany,

      No one objects to the surveillance of unsavoury characters.

      However, to imprison people without charge and without representation is a whole nother matter.

      To collect the metadata of citizens who are currently not 'persons of interest' is intrusive and dangerous.

      Commenter
      Ross
      Location
      MALLABULA
      Date and time
      August 11, 2014, 7:59AM

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