Balancing terrorism and the rule of law – might Australia go too far?

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Modern democratic societies face two challenges on the terrorism front. The first is dealing with terrorism – preventing terrorist acts, dealing with those who are minded to commit them and dealing with the consequences. That is a challenge all societies face.

The second challenge in a society like ours is to do that in a measured, proportionate, fair and balanced way consistent with the rule of law.

As author John le Carre said in a recent interview about this and modern western politics, “Decent people are all mystified and joined by fear at the moment”. If le Carre is right, the terrorists may be scoring victories.

What’s the rule of law got to do with it?

What aspects of the rule of law are we concerned with? Essentially, those that require the law to be such that the people will be able and willing to be ruled by it. The law must follow general social values, including fundamental freedoms and the protection of human rights, and be only so intrusive as to better enable society to be safe.

The rule of law means much more than just “rule by law”. That is the easy part.

Spreading fear

There is no doubt that in the modern age there is a threat of terrorist activity that could emerge anywhere at any time – and we have to live with that fact.

Terrorism is not a new phenomenon – terrorists are as old as humans. The places, persons, motivations and means may vary, but the general idea remains the same – to frighten people by gross acts against sections of the undeserving population in pursuit of ideological aims. Terrorists see the creation of fear as somehow assisting in the advancement of whatever agenda they may have to increase their own power and divide their opponents.

Terrorism flourished in fairly recent times in Northern Ireland and England. In the 1970s, there were acts of terrorism in Australia: there were bombings at the Russian embassy, Yugoslav consulates, letter bombs addressed to Israeli officials and members of the Jewish community, the kidnapping and wounding of an Indian official and his wife, and the assassination of the Turkish Consul-General and his bodyguard – and other attacks, probably starting with “the battle of Broken Hill” in 1915, or even the Eureka Stockade. On 13 February 1978, a bomb exploded outside the Hilton Hotel in Sydney.

Since the 11 September 2001 attacks in the USA, international terrorism has taken on new dimensions – first driven by Al-Qaeda and now principally by Daesh (IS, ISIS, ISIL) which, even as it is driven from its temporary geographical base in Iraq and Syria, continues to claim “responsibility” for terrorist activities across Europe, in the Philippines, Africa and elsewhere.  The London tube system remains a target even today.

Australia has been relatively lucky. Effective laws and law enforcement have contributed to that. So has our distant island isolation.

Eighty-eight Australians were killed in the Bali bombings on 12 October 2002 – but that was in Indonesia, not in Australia. Two hostages were killed in the Lindt café siege in Sydney on 15-16 December 2014, but the motivation for that crime seems to have been more the twisted personal aims of a disturbed individual than terrorism. Curtis Cheng was killed by Farhad Jabar at Parramatta on 2 October 2015 in a terrorist attack.

The threat is real and Australia is not immune. But do we require a whole new legal approach to these activities? I would argue not – that pre-existing criminal laws were adequate to deal with this particular form of crime. But there is an argument that additional ancillary laws – about surveillance, detention and interrogation – are useful to have.

The Australian response

On 11 September 2001, Australia had no national laws criminalising terrorism or conferring special powers on law enforcement to deal with it. Since the attacks on the World Trade Center and the Pentagon in the USA, Australia has legislated more than 60 pieces of national anti-terrorism legislation. Complementary legislation has been passed in State and Territory jurisdictions.

Australia has passed more laws in response to terrorism than any other country – including the US. That seems perplexing, because so far Australia has avoided the worst consequences of serious terrorist activity. We are told that more than a dozen possibly serious terrorist actions have been thwarted by authorities in recent years and we have had some incidents here – but very minor compared with other countries.

Have anti-terror laws saved us from the worst in recent times – or do they go too far?

One notable set of provisions enables the Australian Security Intelligence Organisation (ASIO) to detain and question, in secret, any person for the purpose of gaining intelligence in relation to a terrorism offence. There is a maximum five years’ imprisonment for failing to answer questions and for publicising detention or questioning. Equivalent intelligence agencies in other western democracies do not have such powers.

The balance

The (almost) last word may go to Sir Robert Menzies who, on 7 September 1939, when introducing the National Security Bill into Federal Parliament four days after declaring war on Germany, said:

“Whatever may be the extent of the power that may be taken to govern, to direct and control by regulation, there must be as little interference with individual rights as is consistent with concerted national effort … the greatest tragedy that could overcome a country would be for it to fight a successful war in defence of liberty and to lose its own liberty in the process.”

We do need to respond to the threat of terrorism and it seems we have (mostly) successfully done so in Australia. However, we are not given all the details of how that has been done. The lesson we need to take from our response is that while some extra legislative and practical tools might be given to the authorities to address this form of crime, we need to remain very alert to the extent to which our essential liberties are infringed by them. Every new proposal needs to be thoroughly scrutinised from that point of view.