Here we go again. A crime related to terrorism takes place – on this occasion the tragic shooting of a New South Wales police worker by an allegedly radicalised teenager – and lawmakers react by drafting more laws. It has been this way since 9/11 when the Howard government, aided by the Labor party, inserted draconian anti-terror laws into the Commonwealth Criminal Code Act and introduced ancillary laws to cast a pall of secrecy over legal processes involving terrorism charges. Almost 60 pieces of legislation dealing with terrorism have been passed since 2002.
On Tuesday, attorney general George Brandis said control orders – a mechanism for monitoring the lives of individuals who have not been charged with a criminal offence – should be available for individuals as young as 14 (at present the age limit is 16). New South Wales premier Mike Baird wants the power to be able to detain individuals without charge for up to 28 days. This would be unconstitutional at the commonwealth level because it would amount to executive detention.
The underlying premise of this latest flurry of activity – coming less than a year after Brandis and the ALP combined to pass laws that would see journalists in jail for up to 10 years for reporting on Asio “special operations”, and which require internet service providers to hold metadata for two years – is that undermining the rule of law will stop terrorist activity. It won’t but it will further erode our democracy.
Terrorism has been with us for a long time. It was around in the latter half of the 19th century when the anarchist movement did considerable damage in Europe, during the 1970s in the UK courtesy of the IRA and its Protestant opponents, and in continental Europe via the notorious Baader-Meinhoff gang.
In Israel there are on the statute books draconian laws allowing for detention without trial and detention without charge, lengthy jail terms for those convicted of terrorism offences and all manner of surveillance powers available to security agencies and police. Guess what? Israel continues to live with terrorism despite this apparatus of illiberal legislation.
If Brandis and Baird want to radicalise young people searching for a cause then control orders will do the trick. Those of us with teenage children know that 14 year olds do not respond well to authority that is overbearing. It is also an age when individuals take risks, when they think themselves smarter than the forces that seek to control them. Telling a 14 year old that he or she is subject to an order where police and Asio can monitor all internet access, vet all friends and associates, watch him or her at school and even at home is an invitation for that individual and his or her friends to do something very radical indeed.
Control orders should be anathema to a society that purports to believe in the rule of law, one of the elements of which is that the state cannot and should not be allowed to curtail liberty unless the person has been charged with or convicted of an offence. Furthermore, it is outrageous that such orders are made by lawyers for government agencies going to court with secret affidavits in hand which they do not have to show the individual whose liberty is being curtailed and which the court is not allowed to reveal in making an order. Secret justice is a corrupt process.
There are a number of dangers associated with Baird’s proposal to detain people for 28 days without charge. First, it is an offensive idea that a person should be deprived of their liberty for lengthy periods without a charge being brought against them and the opportunity for a bail application to be made.
Second, it amounts to a breach of Australia’s obligations under the International Convention on Civil and Political Rights and the Convention against Torture to detain a person in isolation for a month without charge.
Third, and given the knee jerk propensity of Baird and his fellow lawmakers, what is to stop 28 days becoming 60 days and then six months?
There is no evidence that the vast array of powers that police security agencies and government lawyers have had since 2002 in Australia have stopped a terrorist attack. There is certainly no evidence that the latest proposals will do any such thing – if anything, as noted above, they are an invitation to radicalise.
The rule of law, the late great English jurist Tom Bingham wrote in 2010, is what separates a democratic society from a capricious authoritarian state. He argued that there is a “strong temptation” on the part of governments dealing with terrorism “to cross the boundary which separates the lawful from the unlawful.” Unfortunately Australia has well and truly crossed that threshold.
Our politicians are not keeping us safe as they pretend to do. They can never guarantee a society in which terrorist acts do not occur – no society can. But in the meantime they are creating a police and security state and one without the check of a charter or bill of rights to prevent at least the worst excesses of the state’s misuse of power. Welcome to authoritarian Australia.
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