Counter-terrorism laws: Calm and informed debate is needed

Our counter-terrorism laws do need tightening and the debate about them must be calm and informed.


The Commonwealth Government has proposed a number of reforms to strengthen its legal arsenal in the struggle with Islamist terrorism. Some of these proposed legislative changes will require the co-operation of the States and this is to be discussed at a special Council of Australian Governments (COAG) meeting on 27 September.

Federal Labor is examining the proposals but is yet to state a position. It is unlikely they will oppose any of the measures in principle but they may seek to include more safeguards against potential abuse.

The Government's apparent blanket opposition to the inclusion of sunset clauses is difficult to fathom, especially if these were for realistic periods (5-10 years) and only applied in the more contentious cases.

The background to such issues, ignored by many, is that several significant High Court decisions in both World Wars established the principle that the defence and internal security heads of power in the constitution wax and wane depending on the threat.

This is why we had relatively draconian national security regulations controlling many areas of national life during World War II, but why the Communist Party Dissolution Act was struck down in 1951.

Too many forget this principle. Many also ignore, accidentally or deliberately, the heightened threats of our current national security situation.

It often seems that the quickest way to get trampled in public debate at present is to stand between a professed civil libertarian and the opportunity a microphone presents for knee-jerk criticism. Although a close second would be to stand between any rostrum and a politician seeking to scare up some votes, either way, by appealing to sectional prejudices or suspicions.

Australian history is replete with examples where the end of the world was forecast if certain security or criminal justice measures were or were not adopted. Fortunately, on most occasions, Aussie tolerance and commonsense has won out, especially in the long run.

Much of the debate about a balance between free speech and security has occurred before, during previous threats from the 1920s onwards, with only the labels of the extremists being different. Australia has faced down internal threats of varying degrees from anarchists, wobblies, nazis, various kinds of communist and a range of separatist-supporting émigré groups. As a national community we will successfully face down Islamist terrorism and we will do so much quicker if we remain cool headed.

Over-reaction on both sides must be avoided. The balance between civil liberties and security can only be successfully debated with facts and general tolerance. It also needs to be remembered in regard to security legislation and practices that we are learning few new lessons but re-learning many old ones.

A classic example where civil liberties concerns were not always founded in fact was the widespread belief in the 1950s and 1960s that hundreds of public servants were supposedly being denied promotion because of adverse security assessments from ASIO. The Whitlam Government rightly, but with much fanfare, instituted a Security Appeals Tribunal (SAT) to address the matter.

The SAT instead suffered from a severe lack of work and its responsibilities were soon absorbed into a broader equal opportunities tribunal. Numerous public servants then had to face up to their lack of promotion perhaps being due to their lack of competitiveness rather than their flaunted political beliefs.

In general, the reforms proposed in the Prime-Minister’s statement reflect longstanding recommendations from several inquiries, and other more recent advice from legal, law enforcement and security intelligence sources.

Most of them close potential loopholes or structural weaknesses in existing laws or practices, some of which stretch back long before the current terrorist threat.

Most of the changes are essentially procedural in effect and do not significantly affect traditional civil liberties. These include measures, such as random bag searches and extension of CCTV systems, to better protect those using mass transport.

They also include extending the periods of validity for search warrants, broadening federal police authority to stop and search where they have reasonable grounds to believe a terrorist crime might be involved, and tightening up the laws against the financing of terrorist groups.

In one area, the use of control orders and preventative detention, they break new ground in recent practice, but not really in established principle.

The control orders are intended to work like apprehended violence orders. They are really an extension of the old criminal offence of consorting, in that they might limit the travel or association of those reasonably judged to pose an unacceptable terrorist risk.

The proposal to allow 48-hour periods of preventative detention mirrors British experience and law (where up to 14 days is allowed). This measure is intended to prevent the destruction of evidence, forestall further attacks (once one has occurred) and generally cool down volatile situations.

These are obviously extreme measures in the Australian peacetime context but would be most unlikely to be used with much frequency, or to apply to other than a very small number of persons in most unusual circumstances.

Appropriate safeguards against abuse would obviously be required and, as this is an area where State and federal criminal law interacts considerably, you can be sure the States will defend their interests with vigour.

In one final procedural area, covering extensions to the nature and type of terrorist groups that can be proscribed, the major change is to allow proscription without such groups being banned by the UN first – an unwieldy, inefficient and potentially politically corrupt process internationally .

This was a point of contention between the Coalition and Labor in the past, but is unlikely to be so now given it has become common practice in the UK and several major western countries.

In two more general areas, sedition and citizenship, the proposals reflect more philosophical changes and go beyond what would be traditionally regarded as matters of normal peacetime crime.

With an eye on fundamental questions of national unity in times of increased threat, the measures are also clearly intended to partially reverse the swing of the cultural policy pendulum from the more divisive effects of multiculturalism back towards the need for greater national cohesion.

In particular, the sedition laws are to be updated to better deter or prosecute those who betray their fellow Australians by inciting violence within the community in order to change our way of life through undemocratic means.

They would also cover those who betray their citizenship and community responsibilities by supporting Australia’s enemies – particularly by undertaking actions designed to undermine the operational effectiveness, security or morale of the defence force in its prosecution of military operations in our common defence.

It was weaknesses in this area, for example, that precluded prosecution in the late 1960s and early 1970s of those who actively supported the forces fighting Australian troops in South Vietnam.

The measures proposed are clearly targeted against the incitement or active support of violence. Legitimate and peaceful dissent would, of course, continue to be unaffected.

But active sedition and treachery, such as recruiting or collecting funds in order to aid and abet Australia’s enemies or willfully sabotaging our defence capabilities, would be a clear offence (and, if their intent was to overthrow the legitimate government, more clearly treason).

With appropriate safeguards, such measures are not a threat to freedom of speech or legitimate peaceful dissent – but they will be portrayed as such by those with a political or sectional interest in doing so, and by those with little understanding of Australian history.

Attempts by Islamist extremists to erroneously paint counter-terrorist measures or other matters of national policy as somehow being attacks on Islam, or as somehow directed at all Muslims, are to be expected – but they would say that, wouldn't they?

Such false claims are simply a hate crime, and if they intentionally or irresponsibly lead to violence they should be prosecuted as such. In some cases they are clearly seditious and should be handled accordingly.

The second area of proposed major change is citizenship. The period of permanent residence required to qualify for citizenship will increase from two to three years, security checks of prospective citizens are to be restored, and cancellations of citizenship can now be based on criminal offences committed between when citizenship approvals are given and when they are taken up.

Most Australians would no doubt be surprised that the security checking of citizenship applicants was ever stopped, but stopped it was in one of our periodic bouts of political correctness cancelling out commonsense.

Similarly, increasing the period to qualify as an Aussie has also been progressively lessened over recent decades (it used to be 5-15 years) and will now be restored to at least the three years it was reduced to by the Whitlam Government.

In comparable countries of settlement by mass immigration it is generally even longer (in New Zealand 3-5 years and in the USA it is 5 years).

It could well be argued that we are still needlessly cheapening our citizenship by giving it away before applicants have sufficiently proved their change of allegiance to our democratic, pluralist and secular constitutional system and its supporting way of life.

The proposed changes to our counter-terrorism, sedition and citizenship laws require careful analysis and calm and informed public debate.

Some will be adopted with little demur but others may require modification (and in some cases 5 or 10-year sunset clauses) before the federal and State governments can be expected to agree.

The important thing is that political posturing is avoided by both sides of politics, and by civil liberties lobbies again leaping in before they do adequate research.

In particular, sensitivities within the Muslim community must not be inflamed by uninformed accusations made by those who see an anti-civil liberties conspiracy behind every gum tree.

Or, on the other hand, by those who fail to recognise that the Islamist extremists do not represent, are not representative of, and are not supported by, the vast bulk of Australia's Muslims.

(See also the articles on this issue in the Spring 2005 issue of Defender).