State premiers and chief ministers met the Australian Prime Minister, John Howard, on September 27 and endorsed a raft of unprecedented anti-terrorism measures. In doing so they undermined fundamental human rights - rights we often take for granted, but rights that help to define Australian society and for which our soldiers fought and died.
Howard knew none of the state and territory leaders would dissent. They had no choice. Islamist terrorism is a serious problem, and they have a responsibility to address it. Failure to agree to the changes would leave them looking indirectly responsible for successful terrorist attacks should they occur in Australia, and no politician will risk that. Of course, it helped that ASIO had just let slip the unsubstantiated claim that there were 800 would-be suicide bombers living in Australia.
Howard needed the blessing of the states because the Australian Constitution, notoriously silent on human rights, does offer citizens the fundamental protection that only the courts can administer punishment. As Attorney-General Philip Ruddock explained a couple of weeks ago on the ABC’s Insiders, “the fact that a period of detention … might be seen to be punitive means that it’s not something you can impose administratively”. So Howard had to obtain the states’ agreement.
Described by Queensland Premier Peter Beattie as “draconian but necessary”, the new laws will allow preventive detention without charge for up to 14 days, control orders including house arrest for up to 12 months, electronic tagging and tracking of suspects, and wide search and seizure powers. Federal police will have to persuade a judge that a control order is “reasonably necessary and reasonably appropriate and adopted for the purpose of protecting the public from a terrorist act”. Such an order will be granted on “the balance of probabilities”, not on the basis of proof beyond reasonable doubt. The one major concession Howard made was the addition of a 10-year sunset clause on the new laws - unless they are extended by future parliaments.
Broadly, the new laws are more than a knee-jerk reaction on Howard’s part to the London bombings earlier this year, or simply a desire to copy what Tony Blair is doing in Britain - where he recently introduced a bill to extend his current 14 days without trial to 3 months. The laws signal a clash between liberty and security, between individual rights and the “national interest,” and arguably between citizens’ interests and commercial interests.
We are being asked, implicitly, whether we want to be free or safe. There is no third option. And who of us does not want to be safe? Except that no amount of anti-terrorist legislation will alone actually prevent terrorists from carrying out their despicable acts. What it does provide is a semblance of protection, while eroding civil liberties and tilting us a little more towards totalitarian rule.
At his first press conference after being re-elected on November 4, 2004, George W. Bush, a close friend of John Howard, pointed out, “If we are interested in protecting our country in the long term, the best way to do so is to promote freedom and democracy”. While Bush goes about doing so, or appearing to do so, in Iraq and other far-off places, it seems Blair and Howard are busy curbing their own citizens’ freedom and dismantling liberal democracy. Or perhaps, for neo-cons, freedom and democracy are code words for something else. If so, be alert and be alarmed.
“Of all tyrannies,” C.S. Lewis observed, “a tyranny sincerely exercised for the good of its victims may be the most oppressive”. If two recent online polls conducted by The Sydney Morning Herald are any indication, some of the victims certainly feel oppressed. Asked on September 27 if they were for a sunset clause, 84 per cent of respondents said yes. Asked the following day to “rate the new anti-terrorism powers,” and given three options, 19 per cent thought them “excellent,” 14 per cent indicated they were “acceptable,” and a whopping 67 per cent described them as “over the top”.
Among those who might view the new laws as “over the top” are Australian Muslims. It is not hard to see how they could interpret the laws - which come in the wake of already tough anti-terrorism laws introduced after September 11, 2001 - as an attack on Muslims and Muslim faith. Islamic community leader Keysar Trad claimed the new laws would “cause greater antagonism among Muslims and ironically could be used to justify a terror act”. Isn’t that what the new laws are supposed to prevent? And if it is Muslims today, who knows whom it will be tomorrow?
While I’m in favour of reducing by reasonable means the likelihood of terrorist attacks on Australian cities and innocent people, I view with alarm the ease with which the Howard government has been able to secure these far-reaching changes to Australian law. Four years ago, in the immediate aftermath of 9-11, such sweeping powers would have been out of the question. These new developments say much about Howard’s political mastery, but do nothing for the long-term strength and stability of Australian society.
As NSW Bar Association President Ian Harrison, SC, said, “These provisions have the potential to subvert entirely the conventional protections and established civil rights that our system of justice has put in place over the last 200 years”. That, putting it bluntly, is the price Howard and the state and territory leaders are willing to pay for electoral success. And if one of the aims of terrorism is to subvert our way of life, then Howard has conceded a victory to the terrorists.
Still, as they say, every cloud has a silver lining. The laws allow those detained for up to 14 days to telephone their employer “for the purpose of letting them know they are safe but are not able to be contacted for the time being”. Anyone for a holiday? Just pick up the phone and call your boss.