May 2006
Monash law lecturer Mr Patrick Emerton argues that Australia's new anti-terrorism legislation threatens everyone's freedom.
Like many governments, the Australian Government has responded to the attacks of 11 September 2001 by enacting a range of new legislation to respond to the perceived terrorist threat. The government promotes this legislation as essential to protect Australians from terrorism. Many critics, however, take a different view -- they believe these new laws undermine Australia 's traditions of liberty and democracy.
To grasp the force of these criticisms, we need to look closely at these new laws. One thing they do is create a range of new criminal offences. Some of these are unexceptional, such as the new offence of placing a bomb in a public place with the intention of causing serious harm. This sort of conduct -- misuse of explosives, and endangering life -- was already criminal before 2001, and there is nothing wrong with our law including an explicit prohibition on terrorist bombing.
But not all the new offences are like this. Australian law now criminalises any kind of participation in politically motivated violence, wherever it takes place in the world. This law makes no distinction between soldiers and civilians, or between legitimate and illegitimate motivations. It would make criminals of the September 11 hijackers, but would also make criminals of George Washington, Nelson Mandela or other freedom fighters.
It even makes criminals of people who are members of organisations having only the most tenuous links to political violence. If these new laws had been in force in the 1980s, it may well have been a criminal offence in Australia, punishable by up to 25 years in prison, to teach members of anti-apartheid organisations to use a photocopier.
Such far-reaching offences are not needed to stop terrorist violence. Rather, because of their breadth, they encourage authorities to pick and choose which individuals and organisations to investigate and which to leave alone, based on the 'acceptability' of their political outlook.
For example, those Australian political organisations that supported the invasion of Iraq are probably criminal organisations under our new laws, because they have fostered political violence, but we all know they will not be subject to criminal investigation. It seems that only groups with Islamic or Middle-Eastern connections are of interest to authorities.
This takes us to a second feature of our new laws. Over the centuries, our methods of criminal investigation have been designed to protect individuals from false accusations and from abuse by the investigating authorities. This is the rationale for such principles as the presumption of innocence, the right to remain silent, and the right of an accused to be brought before a magistrate upon his or her arrest.
Many of these principles -- until recently thought to be fundamental to our legal system -- have been abandoned when it comes to terrorism-related investigations. Under our new laws, people who are neither suspected of committing an offence nor charged with one can be taken into secret detention by the police or by the Australian Security Intelligence Organisation (ASIO), with little or no right to contact their family and only limited rights to speak to a lawyer.
However, the law does not give authorities open slather. There are limits on who can be detained, and for how long, and on what can be done to them while in detention. But secrecy, and the knowledge on the part of authorities that they do not need to defend their actions in an open courtroom, invites abuse. And even where no abuse takes place, do we really think it is consistent with Australian democracy to have innocent people being taken into secret detention?
Do we want secret trials based on the politicised application of overly broad laws? After all, history shows us that tyrannical governments are a greater threat to human wellbeing than any other sort of terrorist violence.
Mr Patrick Emerton is a member of Monash's Castan Centre for Human Rights Law and has appeared before several parliamentary inquiries into Australia's new anti-terrorism laws. | 
