If I were Attorney-General my first priority would be to attend to unfinished business – namely to address pressing matters of law reform which have been recommended by bi-partisan or independent bodies after a suitably consultative and deliberative process of review. This may seem an odd, rather mundane place to start work. However, while there is certainly a case for more sweeping structural reforms of the Australian legal and political system (among which I would include a judicial appointments commission and greater regulation of political donations and lobbyists), the reality is that law’s effectiveness in the achievement of the goals which our society views as desirable – as well as its ability to guarantee the essential liberties of individuals – lies just as much in its detail as it does in the ‘bigger picture’. So, for instance, the Commonwealth Parliament has enacted over 45 laws dealing with terrorism since September 2001 but there are many elements in what has been produced which are problematic. This is probably not surprising in light of how much legislative activity has occurred over such a brief time in an area where we have had so little experience. But the flaws in these laws are not a mystery – many have been identified in a succession of parliamentary and other committee reports to which the present government has only offered the most minimal response. These reports require action.
In 2006 alone, three major reviews delivered reports which the government could have used to improve our anti-terrorism laws. One of these was the work of the Security Legislation Review Committee, chaired by former NSW Supreme Court Justice, Simon Sheller AO. The Committee’s report highlighted a number of problems with the existing criminal offences relating to terrorism. For example, it recommended that the crime of ‘association’ with a terrorist organisation be repealed since it considered that this was not properly targeted to criminalise active support of a terrorist cell yet counter-productively fed feelings of alarm and mistrust in Australia’s Muslim communities. Elsewhere in its report, the Sheller Committee suggested that the section criminalising the provision of ‘training’ to a terrorist organisation was unworkable and required urgent amendment. The Committee also expressed strong dissatisfaction over the current powers invested in the Attorney-General to ban organisations if he is of the view that they are ‘terrorist’ in character. None of these recommendations – many replicated by the Parliamentary Joint Committee on Intelligence and Security’s mid-year report on the offence provisions – was accepted by the government.
Similarly, the very considered recommendations put forward by the Australian Law Reform Commission in its review of the revamped crime of sedition – a process undertaken by the Attorney-General as a sop to the objections of members of his own government to the introduction of these changes in 2005 – have lain dormant. This is despite the fact that some of the ALRC’s recommendations would actually increase the scope of the offences – namely to deal with incitements to racial tension.
Of course there are some aspects of our current anti-terrorism law which require a more substantial reappraisal than offered to date by these processes. Some people would repeal the lot but this is not a view I share. However, I certainly think a case can be made for far greater constraints over many of the laws. Control orders, for example, can only be justified, if at all, as a deprivation of liberty upon those who have been previously convicted of a terrorism-related offence, much as similar orders may be applied to released sex offenders. Other powers, such as preventative detention orders, are, in my view, completely unwarranted – something reflected by the absence of anything comparable in other jurisdictions like Canada, New Zealand or the United Kingdom.
It is at this point, that attention to the specific necessarily requires a commitment to the larger issues. The defects and excesses of Australia’s anti-terrorism laws largely stem from our lack of a commitment to human rights guarantees – either through a constitutional or statutory charter of rights. The beneficial impact of such an instrument upon the measures adopted to combat the threat of terrorism is clear from looking at what has transpired elsewhere. Worrying ‘innovations’ may still arise in those jurisdictions but they do so with a quality of scrutiny and debate sadly lacking here – and their final form is definitely more circumscribed than many of our new laws. It is just not the case that those nations with a formal instrument of rights protection are less safe than us – indeed the very opposite may be true.
So, the development of an Australian Charter of Rights must be a key goal. But in the meantime, there are plenty of steps – already publicly identified – which we can take to substantially improve the way in which our anti-terrorism laws protect us and protect our liberties.
Dr Andrew Lynch is Director of the Terrorism and Law Project, Gilbert + Tobin Centre of Public Law, University of NSW