Recalibrating Australia’s Counter-Terrorism Law and Policy

Changes in government carry with them a certain energy.  Clearly, for supporters of the vanquished, these are moments of melancholy.  But for the broader electorate, the mood is an excited brand of hope.  Suddenly, the next three years seem fresh, free and open.  The familiar patterns of the past no longer apply.  Anything is possible, and for a moment everyone dreams of a nation approximating their own designs. And for the new government, it is a time of rare opportunity.  Politics is a choking endeavour.  Principles and ideals are regularly compromised for powerful political imperatives.  There are factions to placate, key demographics to appease, media critics to rebuff and ultimately, elections to win, all of which has the potential to lead to bad policy.  If these compromising factors are ever suspended, or at least mitigated, it is in a new government's brief honeymoon.

My hypothetical ascension to the Attorney-General's portfolio occurs in that environment.  The nation's mood for change has been expressed, and in the most politically charged area of my duties – terrorism – the electorate seems to have discovered a hitherto absent cynicism.  A recent survey by security company Unisys has terrorism dropping down the list of Australians' security concerns.  It seems identity theft and credit card fraud bother us more.  Undoubtedly the Haneef debacle informs this growing cynicism.  More than at any other time since 11 September 2001, the Australian public is prepared to accept that it is possible for counter-terrorism to be too indiscriminate, and too aggressive.  The fact that there have been no successful terrorist attacks on Western soil since 2005 has no doubt had an impact, too.

Now would be the time, then, for me as federal Attorney-General to re-calibrate Australia's counter-terrorism law and policy.  It is difficult to believe the Haneef case was merely an isolated accident.  No less troubling is the case of Izhar Ul-Haque, who, according to the New South Wales Supreme Court, was kidnapped and falsely imprisoned by over-zealous ASIO officers.  The facts of that case, and the treatment of Haneef by both police and the Howard government, point to a more general orientation in Australian counter-terrorism, contemptuous of suspects' presumed innocence, muscularly asserting the power of the state, and skewed towards aggression.  This has been something of a cultural phenomenon in recent years that pervades law enforcement and intelligence agencies, but also the parliament.

My aim would be to set a different cultural tone.  A starting point might be an emphasis on terrorism as more than a national security problem, but as a community problem as well.  Community-based approaches to policing and intelligence would be encouraged, where these agencies develop strong community relations and eventually come to be seen as serving the public rather than surveilling and policing it.  It is an approach that has long been successful in Victoria, Britain and Queensland, but it is sorely missing at the federal level.  Clearly, government cannot control these agencies, but it can set an example.

Legislation might be a good place to start.  As Andrew Lynch has written in previous editions of this column, the Howard government has certainly had the benefit of numerous recommendations and evaluations of its anti-terrorism legislative regime.  Much of it has been critical, often on human rights grounds, and almost all of it has been ignored.  Naturally, I would echo Lynch's call to pay greater heed to these recommendations.  But I would add an extra dimension to these inquiries.  I would seek a comprehensive review of our anti-terrorism laws specifically analysing their social and psychological impact on minority groups, with a particular focus – in human rights terms – on the extent to which they are discriminatory either in letter or in practice.

I say this not only as a human rights concern, but as a key plank in assessing the efficacy of these laws.  A substantial body of academic literature concludes that when the state resorts to strong demonstrations of power in response to a terror threat, and especially where they do so in a way perceived to be discriminatory, it has the long-term effect of exacerbating the threat it is aiming to counter.  This was true of the British experience with the IRA.  It is true of Spain's experience with Basque separatists.  It is true of the Sri Lankan struggle with the Tamils.  Discriminatory, muscular counter-terrorism only increases support for the terrorists' cause and causes their ranks to swell.  A Monash University study suggests a similar phenomenon might be at work in Australia.  We urgently need a more comprehensive examination of this.

It is difficult for governments to resist these aggressive counter-terrorism responses.  It is even harder to sell a message to an electorate that human rights and counter-terrorism are not in tension.  But our best knowledge suggests this is true, and if ever there was a time where the politics allow that message to be sold, it is now.  That is an opportunity I would hope to use.

Waleed Aly is a Lecturer in the Global Terrorism Research Centre at Monash University, a lawyer and a former secondee with the Human Rights Law Resource Centre