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Knee-jerk law making

By George Williams - posted Monday, 5 June 2006


It is not surprising that our political leaders, as members of parliament and law-makers, have turned to new laws as a front-line response to terrorism. New legislation is at least within their control and is a symbolic and potentially practical response. However, while our political leaders may want to be seen to act in response to the attacks that have taken place, we need to be realistic about what new laws can achieve.

New laws cannot provide long-term solutions. Legislation is unlikely to tackle the causes of terrorism, nor to deter a terrorist from a premeditated course of action. Further, law-making may direct attention away from the debate over other, more effective, responses. As the drivers of change after a terrorist attack, grief, fear and political opportunity are some of the worst possible motivations.

Second, our response after September 11 has been essentially reactive. The rush to legislate after an attack has been a hallmark. Each new attack and set of disturbing images has meant one or often several new laws. However, by itself, an attack does not mean that the government needs new powers. This can only be determined after careful scrutiny of our existing laws in light of what can be learnt from the attack.

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Unfortunately, new laws have been made with such haste that a careful assessment of where we already stand has been impossible. The laws passed after the London bombings were enacted so quickly that they have come into force before two ongoing inquiries into the effectiveness of our existing laws can report. Before the 2005 attack, neither the government nor its key agencies were putting the case for change to the law or an expansion of their powers, yet after the bombings the pressure for this proved irresistible.

The cycle of an attack followed by a new law is dangerous. Driven by fear and the need to act, we run the risk of an ongoing series of over-reactions. This is the dynamic that terrorists rely upon. What they cannot achieve by military might, they seek to achieve by stimulating our fears. By our own actions we may isolate and ostracise members of our community, who instead of assisting with intelligence gathering may be susceptible targets for terrorist recruitment. Through our over-reactions and short-term thinking, we may actually make ourselves more vulnerable to terrorist attack.

Third, the process of making the new laws since the London bombings has been deficient. The laws over 2002 and 2003 were debated in the media and parliament over several months and, in some cases, were analysed by more than one parliamentary committee. This led to many important changes that had bipartisan support. It gave us strong laws more likely to survive High Court challenge. Indeed, on the first anniversary of September 11, Prime Minister John Howard said that “through the great parliamentary processes that this country has I believe that we have got the balance right”.

By contrast, with control of the senate secured from July 1, 2005, the prime minister sought to rush through new laws after the London bombings. He wanted to have the laws in place by Christmas at the expense of a proper inquiry and public debate. However, the release on the internet of the draft law by ACT Chief Minister Jon Stanhope provided greater than expected opportunities for debate and more time was also given due to the laws being constitutionally suspect. Nevertheless, the process was severely truncated.

The laws were still passed by Christmas in lightning fashion for legislation of such importance dealing with subjects as diverse as sedition and the preventative detention without charge of Australian citizens. Remarkably, the compromise on sedition laws involved an immediate inquiry after their enactment into whether they need to be fixed and also whether new sedition laws are required in the first place. Holding such an inquiry after the laws have been put on the statute book is one of the more bizarre and unfortunate aspects of how our terror laws have been made.

Fourth, we have lost sight of the need for balance between our national security and fundamental freedoms. The object of the laws cannot be national security at all costs. The goal should be to protect the community from terrorism while ensuring that we retain the freedoms that make Australia the country it is. This involves some give and take.

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Some basic rights like privacy should be limited in appropriate circumstances to ensure that our police and intelligence services can deal with a threat. On the other hand, other changes cannot be justified because they disproportionately undermine democratic principles. The new sedition laws are an example. They imprison people for what they say rather than for what they do, arguably for little gain in preventing a terrorist attack. We should not damage our democracy and liberties in this way in the name of defending them against terrorism.

Australia is especially vulnerable to this. As the only democratic nation without a national bill of rights, we must rely upon the parliamentary process (a frail shield at present) or the good sense of our political leaders. These are ineffective checks at a time of community fear and, in any event, are not safeguards that are now regarded as sufficient in any like nation. While it is encouraging that the ACT now has a Human Rights Act and that Victoria has announced that it will enact a Charter of Human Rights and Responsibilities, protection for our speech and other rights is also needed at the federal level.

Fifth, public debate on our laws is often not based upon a realistic assessment of the risk and an understanding of the limits of the law. There has always been and will always be a risk of a terrorist attack. If the goal is to eliminate that risk, we will fail.

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First published in The Age as "What Price Security?" on March 25, 2006. 



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About the Author

George Williams is the Anthony Mason Professor of law and Foundation Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales.

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