Which anti-terrorism laws are boiling the frog?

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Anti-terrorism laws have become a hot topic for Australia in recent years. As global tragedies in places like London, Paris and the US have ramped up our fear of extremist attacks, politicians have responded by ramping up the legal tools that our defence forces need to prevent such attacks.

In our own backyard, we have seen the 2002 Bali bombing, the 2014 Lindt Café siege, the 2015 shooting of police worker Curtis Cheng, and the foiling of a number of potential terror plots that have led to arrests around the country. Australia’s terror threat level was raised to “probable” in September 2014 and, since then, according to Foreign Minister Julie Bishop, there have been four attacks, more than 60 arrests and 12 thwarted attacks.

“We have to be clear-eyed about the risk,” Prime Minister Malcolm Turnbull told news.com.au in June. “It is real. That is why the terror threat level in Australia is set at probable.”

This rising threat and fear of terror can stimulate governments to quickly introduce new laws or adapt existing legislation to protect citizens. But in a climate of haste and fear, we can often forget how news laws conflict with civil liberties and the rule of law.

Below are four types of laws that ostensibly seek to prevent terrorism in Australia. However, in preventing terrorism, they also pose threats to fundamental rights.

Holding without charge laws

Police can hold suspected terrorists for a specified period of time, without charge, under national anti-terrorism legislation. Suspects – and that’s all they need be – can be detained and held without charge for questioning for up to 14 days.

Such laws diminish the presumption of innocence by imprisoning and, in a sense, “punishing” people before they have been proven guilty or even had the opportunity for a fair trial.

The NSW laws came in to effect in mid-2016. Previously, a judge’s approval was sought to extend detention by 48 hours. When the laws were amended to increase the length of time police could hold suspects, Former Deputy Premier and Minister for Justice and Police Troy Grant reiterated that the “legislation … will only be utilised when there is imminent threat to our community from terrorism”.

Stephen Banks, President of NSW Council for Civil Liberties, told ABC that holding without charge laws undermined the rule of law.

“The police, when they deprive individuals of their liberty, do so under the supervision of an independent arm of government – the judiciary. That is a fundamental aspect of our free society … and here we are throwing it away,” he said.

Consorting laws

Under consorting laws, it is a criminal offence to associate with two or more other people who have specified previous convictions. You guessed it – terrorist offences are high on the list.

The idea of consorting laws is to make it difficult for criminal organisations like bikie gangs to get together and commit crimes. However, they clearly restrict a person’s freedom of association and could be seen as arbitrary. They also clash with concepts of rehabilitation in criminal justice by placing controls on former criminals who may have already served their sentences.

A mother might tell her five-year-old son he should not hang around particular friends – but is it really okay for our government to determine who we associate with?

The Law Council of Australia has observed that these association offences can “disproportionately shift the focus of criminal liability from a person’s conduct to their [alleged] membership of an organisation” – again, potentially conflicting with the presumption of innocence.

The Public Order Act makes it an offence to participate in an assembly that “gives rise to a reasonable apprehension that the assembly will be carried on in a manner involving unlawful physical violence to persons, or unlawful damage to property”.

This interferes with our ability to conduct peaceful protests, as well as any implied right to freedom of speech. While it is understandable that the authorities must legislate to protect public safety, the words “reasonable apprehension” could be perceived as granting police officers a broad scope to disseminate protests.

Just how reasonable is “reasonable”?

Excessive force

In June 2017, NSW Police Officers were given extraordinary new “shoot-to-kill” powers to pre-emptively shoot terrorists or suspected terrorists without fear of criminal prosecution for killing the suspect. The new laws allow police to “use lethal force to defend any persons threatened by a terrorist, or to prevent their unlawful deprivation of liberty”.

President of the Law Society of NSW Pauline Wright said she was “gravely concerned” by the legislation and that it could “result in the use of lethal force becoming the norm for any siege situation, without it necessarily being terrorist-related”.

A worrying element of these laws is that they apply to suspected terrorists as well as terrorists – thwarting important tenements of Australian criminal law such as the presumption of innocence and the right to a fair and independent trial. The “shoot first, ask questions later” method does not rest easily with the rule of law.