Sacrificing Civil Liberties to Counter Terrorism: Where Will it End?
2018 John Marsden Lecture, NSW Council for Civil Liberties, 22 November 2018
My talk relates to a long-standing problem:
how to protect the community from terrorism, while at the same time respecting fundamental human rights, such as freedom of speech and the right to a fair trial
This problem has become especially acute in recent times. Governments around the world have responded to the tragic events of September 11, the London 2005 bombings and other attacks by enacting laws that confer extraordinary powers upon governments and their agencies. Such laws may be directed to protecting the community, but they are in the risk of undermining the very freedoms we are seeking to protect from terrorism.
George Marsden delivering the 2018 John Marsden Lecture.
It is now 17 years since the September 11 attacks, and it might have been thought that we would have resolved question such as this, or that they would have faded away.
In fact, the opposite has occurred. Rather than listening over time, laws directed at terrorism have ratcheted up over time.
What has become clear is that the response of democratic nations to terrorism is more than a temporary, emergency reaction to catastrophic attacks like those on September 11. The laws enacted after those events amount to much more than a transient, short-term response.
In many ways, this makes these laws of a greater significance than the exceptional measures typically found on the statute book during World Wars I and II. Those conflicts were of more definite duration, and wartime legal measures ceased to operate after the conflict ended.
By contrast, modern new anti-terror laws have taken on a character of permanence. While a few anti-terror laws are the subject of ‘sunset clauses’ that could see them lapse after a specified period of time unless re-enacted, most have effect for an indefinite duration. All this points to the fact that the anti-terror laws may be altered in the coming years, but will not be repealed.
Indeed, what has at times been called the ‘war on terror’ has run now for a longer period than either of those worldwide conflicts, and continues unabated. It has taken on the character of a perpetual war. It is not likely that the threat of terrorism will diminish anytime soon, and indeed it is unrealistic to expect that groups unable to achieve their objectives by military might will ever abandon use of terrorism.
Indeed, this may be because terrorism represents the only option available to them. Many a freedom fighter, including Nelson Mandela, engaged in terrorism in response to the overwhelming power of the state.
The conflict itself continues to evolve. There are always new threats on the horizon, such as now the possibility that terrorist attacks will be committed at home by citizens returning from conflicts like those in Syria and Iraq, where they have been indoctrinated and radicalised, and trained in terrorism.
And new frontiers will no doubt emerge, such as the prospect that terrorism will move into the cyber sphere in order to attack critical systems such as water and electricity.
What all this points to is that anti-terror laws are here to stay. This has important implications. We can expect that inroads made into human rights by these laws will endure. Increased surveillance brought about by CCTV and other devices will not be removed anytime soon.
These measures are creating new precedents, understandings, expectations and political conventions when it comes to the limits of government power and the state in protecting human rights. More broadly, they are reshaping the relationship between the state and citizen in fundamental ways that will have a long-term impact upon what we see as being the proper limits of government power.
Indeed, laws and powers that were thought unthinkable prior to September 11 have now become commonplace. Such laws can sometimes even be introduced without a murmur of dissent.
Over time, anti-terror measures are becoming seen as normal rather than exceptional. This is due both to the passage of time and the fact that anti-terror strategies are being copied in other areas of the law. All this is creating a new way of looking at the world, new understandings of our human rights is a member of a democratic society.
Most recently, nations of pass laws that affect whether a person is entitled to even the most basic protection of the state. Beginning with the United Kingdom, followed then by Canada and now Australia, nations have given governments the power to strip people of their citizenship on the basis that they prejudice the nation’s security. This is one example among many of how our response to terrorism is not only altering how we are governed, but even who we regard as a member of our community.
Australia came relatively late to enacting national anti-terror laws. It had no such laws prior to the September 11 attacks, but afterwards quickly made up time.
We did so in response to those catastrophic events, and also because terrorism also present a threat to Australia. Gauging that threat is of course difficult.
Medium and now high rating …
Australia’s response to September 11 was similar to that of many other countries. It emphasised the need to deviate from the ordinary criminal law — with its emphasis on punishment of individuals after the fact — by preventing terrorist acts from occurring in the first place.
New legislation of unprecedented reach has been enacted. Powers and sanctions once thought to lie outside the rules of a liberal democracy except during wartime have now become part of the Australian legal system.
One remarkable feature of Australia’s response to terrorism is the sheer volume of lawmaking. In the years since September 11, Australia’s Federal Parliament, and so not including the laws of the States and Territories, has enacted 70 anti-terror laws.
This can be divided into three periods. From 11 September 2001 to the fall of Prime Minister Howard’s Coalition government in November 2007, the Federal Parliament enacted 48 anti-terror laws, an average of a new anti-terror statute every 6.7 weeks.
These statistics are eye-catching and, indeed, Australia’s output of anti-terror laws exceeds that of nations facing a higher threat level.
In a comparative analysis of the anti-terror laws passed in a range of democratic nations, Kent Roach has described Australia’s response as being one of ‘hyper-legislation’ as a result of Australia getting ‘caught up in the 9/11 effect’. He found:
Australia has exceeded the United Kingdom, the United States, and Canada in the sheer number of new antiterrorism laws that it has enacted since 9/11 ... this degree of legislative activism is striking compared even to the United Kingdom’s active agenda and much greater than the pace of legislation in the United States or Canada.
Australia’s national anti-terror laws are striking not just in their volume, but, more significantly, in their reach. In particular, Australia’s the laws:
- define a ‘terrorist act’ as conduct engaged in or threats made for the purpose of advancing a ‘political, religious or ideological cause’. The definition is more carefully tailored than others in some nations, but still encompasses liberation movements, such as the struggle of Nelson Mandela against apartheid, the armed resistance in East Timor or those seeking to bring down the Syrian government.
- create a range of new offences, including that of committing a ‘terrorist act’. Other provisions create a wide range of offences for conduct preparatory to a terrorist act. These include: providing or receiving training connected with terrorist acts; possessing ‘things’ connected with terrorist acts; and collecting or making documents likely to facilitate terrorist acts. These offences are also committed even if a terrorist act does not occur or the training/thing/document/act is not connected to a specific terrorist act. The offences thus render individuals liable to serious penalties even before there is what would ordinarily be regarded as the formation of criminal intent. It is this predictive approach, exemplified in the doubly pre-emptive offence of ‘conspiracy to do an act in preparation for a terrorist act’, which gives the offences such an extraordinary reach.
- contain remodelled sedition offences whereby it is an offence punishable by seven years’ imprisonment to urge the overthrow of the Constitution or government by force or violence, or to urge interference in parliamentary elections. It is also an offence to urge violence against a group or an individual on the basis of their race, religion or political opinion.
- enable warrantless searches whereby police officers may enter premises without a warrant in order to prevent a thing from being used in connection with a terrorism offence, or where there is a serious and imminent threat to a person’s life, health or safety.
- provide a longer investigation period for terrorism offences (24 hours) compared to non-terrorism offences (12 hours). In the case of a terrorism offence, the investigating authorities may also apply to a magistrate for up to seven days of ‘dead time’ if they need to suspend or delay questioning the suspect (for example, while making overseas inquiries in a different time zone).
- enable the proscription, or banning, of organisations by government decree. The Attorney-General can make a written declaration that an organisation is a ‘terrorist organisation’. Once a declaration is made, a range of offences apply to individuals who are linked to that organisation, including: directing the activities of a terrorist organisation; intentionally being a member of a terrorist organisation; recruiting for a terrorist organisation; receiving funds from or giving funds to a terrorist organisation; providing ‘support’ to a terrorist organisation; and associating with a terrorist organisation.
- include a ‘preventative detention order’ regime in which individuals may be taken into custody, without charge or trial, and detained for a maximum period of 48 hours where this is reasonably necessary to prevent an ‘imminent’ terrorist act from occurring or to preserve evidence relating to a recent terrorist act. An extended period of detention is then possible under State law up to a maximum of 14 days.
- include a ‘control order’ regime, in which individuals not suspected of any criminal offence may be subject to a wide range of restrictions that can regulate almost every aspect of their life, ranging from where they work or live, to whom they can talk, where those restrictions are ‘reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act.’ A person can even be subject to house arrest. All this can occur without a trial, and indeed control orders ignore the concept of guilt and innocence altogether.
- provide extraordinary new powers to ASIO whereby the Director-General of ASIO can apply to the Attorney-General for questioning and detention warrants. A person may be questioned in eight hour blocks up to a maximum of 24 hours where this would ‘substantially assist the collection of intelligence that is important in relation to a terrorism offence’. In addition, a person may be detained for up to a week for questioning where there are reasonable grounds to believe that he or she will alert another person involved in a terrorism offence, not appear before ASIO for questioning, or destroy a record or thing that may be requested under the warrant. It is an offence punishable by five years’ imprisonment to refuse to answer ASIO’s questions, or to give false or misleading information. These warrants may be issued against non-suspects, including family members, journalists, children between the ages of 16 and 18 and innocent bystanders. It is an offence, while a warrant is in effect and for two years afterwards, to disclose ‘operational information’ (including ‘information that [ASIO] has or had’) that a person has as a direct or indirect result of the issue or execution of the warrant.
- new powers of electronic surveillance, not only for terrorist suspects, but also for those who the authorities believe are ‘likely to communicate’ with the person under investigation.
- additional powers to the Attorney General to close down a courtroom from public view where sensitive national security information is likely to be disclosed. That information may then be led against a defendant in summary or redacted form. Decisions as to whether the evidence will be admitted are decided in a closed hearing from which the defendant and even his or her legal representative may be excluded. When deciding whether and in what form to admit the evidence, the judge or magistrate is directed to give ‘greatest weight’ to the interests of national security over other considerations.
- require that publications, films or computer games that ‘advocate’ the doing of a terrorist act must be classified as ‘Refused Classification’ - includes where it ‘directly praises the doing of a terrorist act in circumstances where there is a risk that such a praise might have the effect of leading a person (regardless of his or her age or any mental impairment (within the meaning of section 7.3 of the Criminal Code) that the person might suffer) to engage in a terrorist act’.
- Include a new metadata law requires telecommunication agencies to retain data relating to our calls and internet use the two years. With the exception of information that might identify a journalist’s source, this can be obtained by authorities without a warrant.
- enable authorisation can be given to ASIO to infringe existing Australian laws when conducting a special intelligence operation. People, including journalists, disclosing information about those operations face jail of up to 10 years.
- Include a list of new laws directed at foreign fighters, including a life sentence even for preparing to fight overseas, five years in jail for advocating terrorism and a declared area offence involving 10 years in jail.
- Laws that provide for prisoners convicted of terrorism offences to be subjected to rolling periods of detention once their sentence has ended, potentially indefinitely
- The revocation of citizenship for dual nationals. The circumstances in which citizenship may be revoked are extraordinary. The process is automatic, rather than requiring a ministerial discretion, and applies not only where a person is convicted of a terrorism offence, but where conduct has occurred without any finding of guilt, guilt by a court. A person subject to revocation is always entitled to notification, nor to any hearing to put their case. The first they may hear of the loss of citizenship is when the police knock on the door to take them into custody and arrange the deportation.
And of course there is yet more, with a number of new measures proposed, and a particular problematic bill still before Parliament, the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018, which introduces further criminal penalties for leaking material, this time about government access to our telecommunications information.
The Bill also imposes new obligations on communications organisations to give law enforcement and security agencies access to information. Such information can be accessed covertly without our knowledge. To a point, such access is justified in order to combat crime and ensure national security.
On the other hand, the government has again gone too far. The legislation provides overbroad powers, including permitting the Director-General of Security or the chief officer of an interception agency to compel a provider to do an undefined range of acts or things. This might include manipulating our data, and any such actions must be concealed by providers.
This is yet another measure, among many, which provides the apparatus needed for Australia to become a surveillance state.
As is clear from this list, Australia’s new anti-terror laws impact upon a broad range of human rights. The laws are extraordinary in their scope and operation. It begs the question, where will this end?
How is this happening?
Australia needed new anti-terror laws, but the laws actually enacted reflect major problems of process and political judgment. To a significant degree, this was a result of many of the laws being enacted in haste as a reaction to catastrophic attacks overseas, especially those on September 11 and in London in 2005, both of which provoked considerable anger, fear and grief in the community.
Also a product of bipartisanship, which in recent times has gone to extreme lengths. Laws such as this demand heightened vigilance and scrutiny, yet this has sometimes gone by the wayside in Australia.
What is notable is that Australia enacted anti-terrorism laws that were in key respects more extreme and rights infringing than those brought about in the United States or the United Kingdom in response to the attacks upon the soil. This was despite the fact that Australia suffers from a lower terrorist threat.
It is not surprising that at such times people look to their political leaders for a strong response, including action that may actually prove to be disproportionate to the threat due to its impact on democratic liberties. This dynamic is well known, and was well stated by Alexander Hamilton in The Federalist (No 8) in the late 18th century:
Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual efforts and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.
This might be countered, or at least lessened, by effective human rights protection. However, such protection, at least in the form of a formal national human rights instrument, is absent in Australia.
Human Rights Protection in Australia
Australians think they have a Bill of Rights: 61% and taking the fifth
But in fact we do not, and Australia is the only democratic nation in the world without such a national instrument.
Australia lacks anything akin to a national human rights act or Bill of Rights. Human rights Acts have been passed in two sub-national jurisdictions, the Australian Capital Territory in 2004 and Victoria in 2006.
These laws are based on the models enacted in New Zealand and the United Kingdom, known as the ‘Commonwealth model’ or ‘parliamentary model’. However, their operation is limited in that they apply only with respect to the particular territory and state laws, and not at all to national laws, including those enacted on the subject of terrorism.
In 2008, a federal inquiry was initiated to determine whether a human rights act should be adopted at the national level. It recommended in the following year that such a new federal law based upon the UK human rights act should be adopted. However, Australia’s federal government rejected this recommendation on the basis that it was too divisive, and instead proposed a new national human rights framework centred upon enhanced parliamentary scrutiny.
As now enacted, the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) requires Bills and legislative instruments to be accompanied by a statement of their compatibility with a number of international human rights conventions. These claims can be examined, and other human rights matters investigated, by a new Parliamentary Joint Committee on Human Rights. The model provides no avenues for judicial enforcement of human rights. There are also no legal consequences should Parliament not properly fulfil the scrutiny function.
This means that parliaments are usually able to act without restraint when it comes to taking away a person’s rights. When Parliament does so, there is usually little role for the courts to play. At the constitutional level, the opportunities for challenge are slim, and indeed no constitutional attack on any one of Australia’s anti-terror laws has succeeded.
Courts might be called upon, for example, to assess as part of the federal division of power whether a counter-terrorism law falls within any of the limited subject-matters on which the Constitution permits the Commonwealth Parliament to make laws.
In many cases, there may simply be no constitutional remedy for the violation of human rights, such as for arbitrary detention or for discrimination on the basis of race or sex – eg of Manus Island case.
Instead, complainants are forced to rely upon the structural features of the Constitution to argue their case. The most successful avenue for this tends to be arguments based upon the separation of judicial power, and in particular arguments that preserve the jurisdiction and authority of the High Court. Not surprisingly, that court has been prepared to vindicate its own position, even if unable more broadly to protect human rights.
This can be an effective tactic, but nonetheless transforms concerns over human rights into debate about the respective powers of the Commonwealth and the States or about whether the courts are being asked to exercise ‘judicial’ power. This leaves little or no room for human rights concepts (eg Plaintiff S157).
Legally-protected human rights standards can provide a yardstick against which to assess the making of new anti-terror laws. Even then, they may prove to be only of limited benefit in the face of what can be overwhelming political and community pressure, in the aftermath of a terrorist attack, for ‘tough laws’ that ‘do whatever it takes’ to stop a future terrorist attack.
A more significant benefit of human and rights protection may therefore be that it can provide a trigger and mechanism for post-enactment analysis. This is a means by which overbreadth in anti-terror laws in other democratic nations can be reassessed, and on occasion remedied. Such a winding back may occur as a result of judicial decisions or through a fresh assessment by a government recognising the value and importance of protecting democratic freedoms.
No process of political recalculation and review has occurred in Australia. The courts have not provided the catalyst for this, and even though Australia has an independent monitor of anti-terrorism laws, its reports, though comprehensive and often damning, have tended simply to be ignored.
The result in Australia is a body of anti-terror laws that in key respects undermines democratic freedoms to a greater extent than the laws of other comparable nations, including nations facing a more severe terrorist threat.
For example, it would be unthinkable, if not constitutionally impossible, many nations to restrict freedom of speech in the manner achieved by Australia’s new censorship laws which enable publications, films or computer games to be banned according to the possible reaction of a person suffering a mental impairment. It would also not be possible to confer a power upon a secret intelligence agency, like that conferred on ASIO, to question and detain for up to a week non-suspect citizens.
A central challenge in enacting anti-terror laws is how best to ensure the security of the nation while also respecting the liberty of its people. In democratic nations, the answer is usually grounded in legal protections for human rights.
In Australia, the answer is provided almost completely by the extent to which political leaders are willing to exercise good judgment and self-restraint in the enactment of new laws. This is not a check or balance that has proved effective in Australia when it comes to the enactment of anti-terror laws. Indeed, Australia provides a sobering example of how a democratic nation can respond to a threat such as terrorism without an effective human rights framework.
The consequences of this are not limited to anti-terror laws. The enactment of those extraordinary laws, and the sense of permanence now attached to them, has had profound consequences for Australia’s legal system more generally. Most significantly, they have created a climate in which the enactment of exceptional laws has become more possible elsewhere.
The bigger picture
I sought to get a picture of just how deeply affected human rights in Australia have been by the enactment of recent laws. I conducted a survey of Australia’s laws nationally and across the states to find out how often our politicians have passed laws that infringe upon democratic rights. The results were surprising and disturbing.
First, an extraordinary number of Australian laws now infringe basic democratic standards. All up, I found 350 such laws in areas as diverse as crime, discrimination, anti-terrorism, consumer law, defence, migration, industrial relations, intellectual property, evidence, shipping, environment, education and health. The scale of the problem is much larger than might be thought, and extends well beyond a few well-known examples.
Of these laws, the greatest number were enacted by the federal Parliament, indeed more than double the number of any other Australian legislature. The jurisdictions next most responsible for enacting laws that encroach upon democratic freedoms are NSW and Queensland.
Second, what was striking is not only the number of laws raising a problem, but that so many have been enacted over recent years. Of the 350, around 60% have been made since the 11 September 2001 terrorist attacks, with a high number also enacted since 2013. That event marked an important turning point. It and subsequent acts of terrorism have given ever greater licence to politicians to depart from long accepted understandings about democratic rights. As a result, measures that were unthinkable have become commonplace.
Third, since September 2001, enacting laws that infringe democratic freedoms has become routine. Rights are not only being removed in the name of national security or counter-terrorism, but for a range of mundane purposes. Speech offences now apply to many public places and occupations, and parliaments have greatly expanded the capacity of state agencies to detain people without charge or arrest. Laws such as these have become so normal and accepted that they tend to be enacted without eliciting a community or media response.
As a result, our elected representatives can abridge democratic rights without paying a political price. Indeed, in many cases, such laws pass with the support of the opposition, and after only cursory debate in parliament.
Fourth, not only has the number of laws infringing democratic freedoms increased, but so has their severity. The survey reveals many laws enacted prior to September 2001 that run counter to democratic rights and freedoms. However, for the most part, these laws have a significantly lower impact upon those freedoms than the laws enacted after then.
These observations reveal that Australia has entered an era in which politicians cannot be counted upon to uphold our most important rights. Rather than acting as a check upon laws that infringe democratic values, politicians are now campaigning for such infringements. Often, they are doing so with impunity.
This is especially a problem in Australia. We are unique among western nations in lacking a national Bill of Rights or human rights act. In our system, rights usually exist only as long as they have not been taken away. This is not an issue if politicians exercise self-restraint, but if that disappears even the most important rights become vulnerable.
This suggest that the September 11 terrorist attacks marked an important turning point in lawmaking in Australia. Those attacks, and the compelling need to respond forcefully to the threat of terrorism, gave greater license to our legislators to depart from long accepted conventions and understandings about the preservation of democratic rights in Australia. As a result, the abrogation of democratic rights, including stringent measures that were previously unthinkable, have become commonplace.
This has even become a routine part of the legislative process. Basic values such as freedom of speech are not only being impugned in the name of national security or counter-terrorism, but for a range of mundane purposes. Speech offences now apply to a range of public places and occupations, and legislatures have greatly expanded the capacity of state agencies to detain people without charge or arrest. Such offences have become so normal and accepted that they can be turned into law without eliciting a community or media response. This demonstrates not only the willingness of parliaments to limit such rights, but that, with rare exceptions, they pay little or no political price for doing so.
The self-restraint normally exercised by parliamentarians in respect to such areas has become increasingly absent as a political culture has developed in which it has become more acceptable to enact rights infringing statutes. This is a product not only of Australia’s exceptional anti-terror laws, but also of the nation’s asylum seekers policies. Unless we take a stand, it is hard to see where this will end …