A fine balance
The Age
Thursday July 23, 2009
The Federal Government is preparing tougher anti-terrorism laws, including a new offence against inciting violence. But it has yet to explain why the new charge is needed. Dan Flitton reports. BE ALERT, not alarmed. Australians, never ones to take officialdom too seriously, quickly turned this pithy warning about terrorism into a national punchline. But despite switching the PR slogan to "every detail helps", governments still preach the same essential message - and more obviously, the suite of laws built up in the past decade to counter the terrorist threat remains in place."Any terrorist attack, wherever and however it may occur, is an attack on us all," Attorney-General Robert McClelland told a Canberra audience this week while condemning the recent hotel bombings in Jakarta. "Such events only work to strengthen our common resolve to bring the perpetrators of this attack to justice and do all we can to disrupt and prevent terrorism."Disrupting and preventing attacks is one thing. But McClelland wants to go even further. He has flagged what he calls a "significant package of reforms to Australia's national security and counter-terrorism laws" - tough new legislation designed to prosecute those people who incite others to use violence against an individual on the basis of race, religion or nationality. McClelland has promised a public debate before the changes, and it's one bound to generate plenty of heat."Most countries since September 11 in the West have had to tighten up their counter-terrorism legislation," Melbourne University international law specialist Tim McCormack explains. "The big dilemma is trying to find the right balance between increased powers of interrogation with protection of civil liberties, and making sure we don't go too far the other way."While police and security agencies will be happy for extra powers to combat what they see as a persistent threat, there are many in the community who worry that the present laws already go too far in encroaching on individual freedoms.SO, WHY NOW?Undoubtedly, the Jakarta attacks added to the Government's urgency for a review of the counter-terrorism laws. But former ASIO officer Michael Roach says it always makes sense to reassess laws and security procedures after any major attack.He now works with private companies to gauge their security, including everything from the integrity of computer systems to the staff they are looking to employ."The question you have to ask is why? Why did they fail . . . Unless people sit back and look, rather than get caught up in the day to day, they won't notice what changes . . . need to be made."I think the Attorney-General is now sitting back saying, 'fine, we've got this suite of policy measures, but does it address the fundamental issues?' "The idea of a general review is welcomed by Athol Yates, director of the Australian Homeland Research Centre in Canberra. He says the focus in counter-terrorism efforts since 2001 has lent towards intercepting and stopping attacks."That's been effective, but now there is a realisation that we need to do more to address those who potentially would be attracted to extremist views," he says."We've focused heavily on those who are close to the explosive-device end, and very little at the other end, trying to stop people who go from sympathisers to radicals."But Yates believes stopping the spread of radical views is not a job in need of new legislation. "Police can actually do very little," he says. "We need to shift the focus away from the legislative approach to the much more co-operative one, working with those groups that can really make a difference." That would mean working with student Islamic organisations, for instance.SO, WHAT NEEDS TO BE DONE?Repeal the laws completely, says Brian Walters of Liberty Victoria. Failing that, set up a stronger oversight system to monitor how the laws are applied.He says the Inspector-General of Intelligence and Security, Ian Carnell, does not adequately police the agencies. "At the moment, there is no feeling that anybody independent of the intelligence services can be appealed to," Walters says."The really big issue is we've got a very large AFP, ASIO security bureaucracy with very little to do in Australia. It needs to justify its existence." Walters is concerned the power and influence of security agencies have gone too far and that it is in their interest to exaggerate the threat of terrorism."The definition of terrorism is absurdly wide," he says. "It covers really any armed struggle against an incumbent government - and it doesn't have to be an armed struggle, it can be less than that. This makes it impossible to know in advance if what you're doing is a crime and it's entirely up to the security officers who they choose to prosecute."The legal definitions are indeed complex. Terrorism is an act or a threat that "causes serious harm that is physical harm to a person" and is done "with the intention of advancing a political, religious or ideological cause". The definition is wider than an act only targeting people. "Financial systems", "essential government services", or "a transport system" are all included.But terrorism is not "advocacy, protest, dissent or industrial action" even if it causes death or "a serious risk to the health or safety of the public". And what counts as a terrorist organisation is equally broad - one "directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act occurs)".Walters is not convinced there is a need for enhanced laws. "It seems to me it's naive and dangerous to think that by making laws ever stronger you will get rid of the existence of a crime."Take domestic violence, which kills a lot more people than terrorism in Australia. What are we going to do? Put CCTVs in every kitchen? Outlaw kitchen knives? In the end, if terrorists are wanting to undermine the democratic ideal, the worst thing we can do is do their job for them."OK, FOR SIMPLICITY'S SAKE, JUST MAKE ONE CHANGE TO AUSTRALIA'S TERRORISM LAWSThe federal Opposition is waiting to see what is proposed before offering a view. "Naturally, the Opposition's attitude will depend upon its examination of the detail of the amendments when they become available," says shadow attorney-general George Brandis.But he insists the most urgent need is for proper resourcing of national security agencies, not more invasive laws. The anti-terrorism laws were comprehensively reviewed and significantly extended by the Howard government in 2004, he says."Despite criticism from the legal profession and the civil liberties lobby that those laws were too invasive, we believed we had struck the right balance between protection of the public and respect for individual rights and liberties," Brandis says.If the Attorney-General is proposing even more invasive laws, he says, he must show why the existing laws are inadequate.But Roach believes there is room for the Government to make changes to stop the spread of violent, radical ideology among young people in particular."You've only got to look at what's going on in Indonesia, it's a lot of the schools," he says. "There are so many good Muslims - it's just that some young people are becoming radicalised and then go all the way in carrying out these horrendous deeds."He describes the proposed changes as moving back towards the source of the problem. "If you can go back to the place of origin where this sort of education process of the youth starts, and get involved right up front in saying 'this is not the way it's done . . . we don't accept violence as a solution'."HOW DOES AUSTRALIA STACK UPAGAINST THE REST OF THE WORLD?The US and Britain have both struggled to settle their counter-terrorism laws. In the US, controversy has centred on the use of torture in interrogations, wire-tapping and Guantanamo Bay. In Britain, the length of time a person can be detained without charges has been the subject of fierce political debate.Tim McCormack worries about similar detention arrangements in Australia, where people can be held on suspicion of plotting attacks. He points to the 2007 case of Gold Coast-based Indian doctor Mohammed Haneef who was held without charge and later deported. "The Haneef affair is supposedly the best known example, but I suspect there are probably others where the individual involved hasn't got the same public profile," he says.McCormack says Australia could learn from the US and the closed court system it has developed to deal with cases that involve secret intelligence and to keep an eye on security agencies."If you're going to allow them to take a person in on suspicion, I think you ought to have to get a magistrate's authorisation after a very brief period of time to be able to warrant continuing the investigation." Even a quasi-judicial process would do, such as an "independent decision-maker".WHERE TO NEXT?McClelland has promised to announce the proposed changes in the next few weeks. Community engagement is a mantra to which he often returns, but it is clear that he still has many people to convince.Like those who operate in the shadows in the name of national security, Australians are in the dark on precisely what the Government has in mind. McClelland has so far offered only the vaguest outline, and as the saying goes, to find the devil, look to the detail. -- With BRENDAN NICHOLSON
© 2009 The Age