A cautionary tale: counter-terrorism legislation

As the Centre of Public Law pointed out in its submission to the Committee: "One cannot help but suspect that the making of a control order against Hicks was driven by political, not legal or investigative, concerns."

Brooks is concerned that many Australians complacently believe that if you're not doing anything wrong you haven't got anything to worry about. When you read the informed submissions made to the committee, she has a point.

How many Australians are aware that the definition of terrorism act extends to serious damage to property or if it seriously interferes with, or seriously disrupts, or destroys, an electronic system including an information system, a telecommunications system, a financial system, a system used for the delivery of essential government services, a system used for or by an essential public utility, or a system used for or by a transport system? Is this common knowledge among "hacktivists", like Anonymous?

Do Australians appreciate the definitional inadequacies, evidential burdens of proof and recklessness fault elements in offences relating to 'training', possessing a 'thing', and making or collecting a document connected with a terrorist act, or the preparatory offence which casts a net over 'any act' without a requirement that it be connected to a particular terrorist act?

What about if you find yourself involved in a 'proscribed' organisation when the Attorney-General is not obliged to notify the general public or the organisation before the decision to proscribe is made?

Many of the submissions to the Committee raise serious concerns about the ability of an AFP officer to conduct searches on people in a 'prescribed security zone', as declared by the Attorney-General, which wouldn't even require the person to be a suspect, about the fact that the laws stretch further than the requirements of international instruments, about the lack of inadequate safeguards against police abuse and the scope to breach our obligations under the International Covenant on Civil & Political Rights.

Add to that the breadth of ASIO's powers and it's a frightening proposition, to say the least, that as a "good global citizen" Australia authorises the detention in secret of non-suspect citizens by an intelligence gathering agency. Respected human rights lawyer, Gareth Peirce, carefully articulates where secrecy, power and the death of justice leads in her book 'Dispatches from the Dark Side'.

The last decade has seen an explosion of laws giving unprecedented powers to security and intelligence gathering organisations, most of which were never properly debated and have flown under the public radar. That has necessitated a huge diversion of taxpayer funds – in times of economic hardship and widespread cost-cutting otherwise – to fund the expansion of those organisations and their operations, but we have no idea whether any of that money is well spent because of the secrecy that surrounds them.

The fact that the committee was formed to look at these issues is at least a first step. Let's hope the committee does its job diligently and, most importantly, objectively. If it does, its report just might nudge the government to make appropriate provisions for judicial review and establish independent bodies to properly scrutinise and randomly audit the agencies involved in implementing our counter-terrorism legislation. The report should make interesting reading.