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From 2001, the Howard Government passed 30 pieces of anti-terror and security legislation in order to strengthen Australia's capacity to respond to terrorism. The anti-terror laws extend the criminal law and expand the powers of intelligence and law enforcement agencies.
The 2005 anti-terror laws pose serious potential threats to civil liberties. At the time that the Anti-Terrorism Bill 2005 was introduced into Federal Parliament on 2 November 2005 (with basic agreement from state and territory leaders), the Law Council of Australia and other state law bodies collectively published an open letter to the then Prime Minister, John Howard, objecting to the legislation, stating, "The Government is using the threat of terrorism to introduce laws that put our most basic civil liberties under threat. The ramifications have the potential to be as terrifying as terrorism itself." (Grattan, The Age, 5 December 2005).
The main provisions of the Anti-Terrorism Act 2005 include:
There is widespread concern that the laws might be applied in a discriminatory fashion (e.g. discriminate against people of Islamic or Muslim background). It is also argued that the judicial and parliamentary review mechanisms are not effective; that an independent monitoring body is needed; and that the ten year sunset provision is too long and should be reduced to five years. An inquiry into the legislation was conducted by the Parliamentary Joint Committee on Intelligence and Security (PJCIS) which tabled its report on 4 December 2006 entitled Review of Security and Counter Terrorism Legislation. Among other things, the PJCIS recommended that the Government appoint an Independent Reviewer to report annually to Parliament. The Australian Law Reform Commission (ALRC) was also invited to undertake a retrospective review of the new anti-terror laws. In May 2006, the ALRC made recommendations to improve the existing laws, for example, removing the out-dated term “sedition” (see ALRC, 2006, Report 104).
The Rudd government’s pre-election stance was in line with the ALRC recommendations on sedition laws, namely that there should be a clear distinction between free speech and conduct intended to incite violence. Refining the law in this way would leave journalists and artists free to speak out freely and to criticise governments, while maintaining avenues to pursue those who promote violence in the community. However, post-election, there has been no action to remove the word “sedition” from federal criminal law.
Another concern is that the new laws threaten freedom of expression and political communication. In July 2006, the Howard Government banned two radical Islamic books on the grounds that both publications promote and incite “in matters of crime or violence, specifically terrorist acts and martyrdom operations”. Australia is the first western nation to have done this. This type of censorship, it is argued, not only exaggerates the influence and importance of radical extremist books, but it serves to further marginalise Islamic communities in Australia. Furthermore, as Amir Butler has stated, “If we are to properly defeat what is essentially a perverted understanding of Islam, it is not enough to simply argue that these ideas are bad because the Government says so”. In other words, the community should have access to such publications in order to be able to scrutinise them (see Abjorensen, 2006).
State and territory governments have agreed to enact legislation to complement the new anti-terror regime. Alarm has been expressed about state anti-terror legislation. For example, the Terrorism (Community Protection) Amendment Act 2006 in Victoria enables police to strip-search children over the age of 10 in the presence of a parent or guardian unless it is not “reasonably practicable in the circumstances” (Shiel, The Age, 31 January 2006). The Law Institute of Victoria (LIV) has made a submission to the Victorian Parliament in opposition to such proposals, stating that the counter-terrorism measures are “not warranted based on the current criminal law and existing counter terrorism laws” (see http://www.liv.asn.au/). Proposals for other state anti-terror legislation have received equal condemnation across Australia, particularly directed at the unprecedented preventative detention powers and control orders. It is of note that in the Australian Capital Territory (ACT), the Chief Minister refused to agree to some provisions related to young people because these provisions would contravene the ACT Human Rights Act 2004.
Another, but less well known act, the National Security Information (Criminal and Civil Proceedings) Act 2004, grants other unprecedented powers to the Attorney-General to directly interfere in the conduct of federal criminal proceedings. Under the Act, evidence that constitutes or might be judged to constitute “prejudice to national security” must be brought to the attention of the Attorney General who has the power to issue a non-disclosure certificate excluding evidence and the right of the accused and legal representatives to view and examine this evidence. This could lead to a situation where the accused person is unaware of what he or she is charged with. The provisions of this Act thus pose significant barriers to a fair trial.
The Rudd government appears to accept the status quo on terrorism laws and has not indicated any future action. It is, however, conducting an inquiry into the Haneef case in part to examine whether there are adequate institutional checks and balances in place for the application of the tough anti-terror laws. As of August 2008, ASIO has released a censored version of its submission to the inquiry, but it is uncertain how much of the Australian Federal Police’s information will be released, including information related to current British prosecutions.
Liberal MP Petro Georgiou has introduced a private member’s bill to establish an independent watchdog to examine the laws’ “operation, effectiveness and implications” on an ongoing basis. This bill has won the support of Labor Caucus Chairman Daryl Melham.
(Michelle Grattan, The Age, 19th August 2008)
ABC News Online, “States approve new anti-terrorism laws”, 27
September 2005,
http://www.abc.net.au/news/newsitems/200509/s1469394.htm
Abjorensen, N. (2006). “Strike up the ban: Censorship and the war on terror”, http://democratic.audit.anu.edu.au/papers/20060830_abj_cens.pdf
Grattan, M. (2005). “Terror laws threat to ‘basic civil liberties’: Law Council”, The Age, 5 December 2005.
Law Institute of Victoria (2006). “Submission to the Victorian Parliament
Scrutiny of Acts and Regulations Committee: Terrorism (Community Protection)
Amendment Act”,
https://www.liv.asn.au/members/sections/submissions/20060123_4/20060123_CounterTerror.pdf
Michaelson, C. (2005). “Australia’s antiterrorism laws lack
adequate oversight mechanisms”,
http://democratic.audit.anu.edu.au/papers/200511_michaelsen_anti_terror.pdf
Parliament of Australia, “In good faith: Sedition law in Australia”, http://www.aph.gov.au/library/INTGUIDE/LAW/sedition.htm
Shiel, F. (2006). “Children in strip-search controversy”, The Age, 31 January 2006.
