No faith in 'anti-terrorism' laws

Now would be a good time to put an end to two things inherited from the Howard Government: the likely-to-be ruled-unconstitutional school-chaplains scheme and the human-rights-infringing anti-terrorism laws. Last week the Government announced the next round of funding applications for the school-chaplains program – a bit cheeky seeing that the High Court has reserved judgment in a case challenging its the constitutional validity.

I hope the applicants are wasting their time and the High Court strikes it down. We have huge trouble getting enough money into public education to teach literacy and numeracy, without wasting it on unqualified Bible-bashers and Koran-carriers prosletysing in the schools.

The program was begun by Howard Government in 2006, and at least $300 million has been wasted on this tripe since. The Gillard Government extended the program for four more years, instead of putting the money where it was needed.  

Bad policy aside, the High Court is to rule on whether the scheme is constitutional. There are two broad questions at stake.

First, can the Commonwealth spend money on whatever it likes, or must the spending relate only to the things the Commonwealth has power to legislate over as listed in the Constitution plussome nation-building purposes?

Second, does the scheme offend the constitutional provisions about separating church and state?

That state-religion division is not so sharp as in the US. The critical clause in the Australian Constitution is that “no religious test shall be required as a qualification for any office or public trust under the Commonwealth”.

The Federal guidelines for the National School Chaplaincy Program provide that schools can apply for money to fund chaplaincy services. The chaplain must be a person who is recognised “by the local school, its community and the appropriate governing authority as having the skills and experience to deliver school chaplaincy services to the school and its community through formal ordination, commissioning, recognised qualifications or endorsement by a recognised or accepted religious institution…”

Sounds very much like a religious test to me. Sounds like an office or public trust to me – getting Commonwealth money to do a task funded by the Commonwealth.

The artful Howard Government, however, did it best to weasel out of the constitutional prohibition. For a start, it did not legislate. Instead, it provided for money to come out of the Education Department’s general funding to go to the states and territories which would administer the scheme.

Presumably, it hoped the states andterritories and their schools would carry the cross of the religious task. The cash-strapped schools, of course, would lap up any money for anything in the hope that some might get side-tracked for education.

Nice try, but at the end of the day no atheist can be a part of the Commonwealth-funded school chaplaincy service - so it follows there must be an unconstitutional religious test.

It is odd that the Labor Government feels obliged to defend Liberal legislation, but it has been that way since federation – always defend challenges to Commonwealth legislation, whichever sort of government initiated it.

But in these days of the sharpest partisanship since federation, why not instruct Commonwealth lawyers to go lame on the defence - and watch the funding of religious perpetuation slide into anachronistic oblivion, where it belongs?

Constitutional challenges to the anti-terrorism laws are a different matter. We have no Bill of Rights as in the US, only some very weak and piecemeal stuff about voting, political communication and juries.

Tragically, most young Australians - infused with U.S. television - are under the delusion that we have a Bill of Rights, if the attitude of many of my media law students is any guide. So they do not see any need to campaign for one.

However, an examination of the anti-terrorism laws 10 years after their enactment suggests the contrary.

Leading constitutional lawyer Professor George Williams gave a compelling case for the review of these laws at the national conference of the Australian Lawyers Alliance last weekend.

Williams is not a bleeding heart and would be the first to acknowledge that Australia needed to respond to the terrorist attacks of 11 September 2001. He said the consequences of successful terrorism were catastrophic and should be met with better laws to deal with terrorist financing; earlier intervention and information gathering.

But we went far to far. Williams argues that so much anti-terrorism law was enacted in haste. From 11 September 2001 until the Howard Government fell in 2007, the Federal Parliament banged through 48 laws, one very seven weeks. Almost all of it got uncritical approval from of the Labor Opposition.

Williams’s analysis reveals of these laws that: the scope was too wide; the discretion to label groups as terrorist too great; the penalties too harsh; the police (and non-police) powers too broad; the intrusion into body and property too intrusive; and the application of the law too wide.

Facts: 37 men charged and 23 convicted, none of actual terrorist attacks, all with preparation only. 18 of the 19 organisations banned by the Australian Government are all linked in some way with Islam.

As they stand, these laws are failing on two grounds. First, they offend normal principles of liberal democracy. Second, they are counter-productive. If you bang young men up for 20 years for merely talking about terror rather than acting it, you will breed seething resentment.

Ironically, these laws should not be called “anti-terrorist”, but “pro-terrorist”, because they breed terrorists.

Williams says that Australia’s law would not be permitted in the US or Canada – which have greater terrorist threats than Australia – because their constitutional provisions would not permit it. One simply cannot rely on the good sense or restraint of politicians in a time of fear – indeed they add to and exploit the fear.

These should be calmer times. Let’s not kill the rule of law in order to protect it. We should now tailor the laws to the level of threat.

And if there is to be such an outbreak of rationality, let’s not fund the purveyors of a white-robed bearded man in the sky promising everlasting life into our schools. Schools should be concentrating on the scientific method, critical thinking, literacy and numeracy – in short, the skills needed not to fall into the terrorist trap of over-reaction.