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