Australians All

Guarding us from the laws that guard us

Petro Georgiou

First published in The Age, 17 March 2008

Given the importance of terrorism laws for the foreseeable future, and their exceptional character, it is vital that legislators, the government and the community receive credible independent advice on a routine basis about the actual operations of the measures.

Since the terrorist attacks in the US on September 11, 2001, the Australian Parliament has enacted more than 30 laws dealing with terrorism.

With bipartisan support, the legislature has agreed that protecting Australians from terrorism demands exceptional restrictions on civil liberties, such as freedom of speech and freedom of association.

Offences and procedures have been established which depart significantly from traditional criminal law principles and practices.

For example, the attorney-general has been given power to “list” organisations as being involved in terrorism. This means that membership and support of these organisations are criminalised, ASIO can detain people for interrogation and those suspected of terrorist involvement may be subjected to control orders and preventive detention.

There has been considerable debate in the Parliament and the community about the necessity for, and desirability of, such measures. And, while Parliament has given its imprimatur, it has not always been unanimous and often there have been considerable reservations.

On a number of occasions when the then government put forward new proposals, I expressed concern about what I considered to be draconian aspects.

I have also voiced my belief that the system’s severity could be eased without undermining its effectiveness and that such reform could potentially enhance it.

A democracy’s response to the threat of terrorism cannot simply comprise the enactment of more stringent laws and the expansion of police and intelligence agencies.

The point was well made last year by the European Commissioner for Justice, Freedom and Security, Franco Frattini, when he said: “Our citizens entrust us with the task of protecting them against crime and terrorist attacks; however, at the same time, they entrust us with safeguarding their fundamental rights. Any necessary steps we take to enforce security must always be accompanied by adequate safeguards to ensure scrutiny, accountability and transparency.”

The challenge of protecting security without undermining people’s fundamental rights requires constant vigilance. But the machinery of vigilance in Australia is deficient.

When the government proposed sweeping new anti-terrorism measures in 2005, I said it was important that Parliament identified a credible mechanism to continuously review the operations of the legislation. I suggested that we consider appointing an independent expert to undertake the task, as Britain has done since 2000.

Subsequently, the desirability of appointing an Australian independent reviewer of terrorism laws has been strongly and unanimously advocated by the Australian Parliament’s Joint Committee on Intelligence and Security, which has both government and opposition members. Others who have supported the idea include the Inspector-General of Intelligence and Security, who monitors agencies such as ASIO, and the Australian Human Rights Commissioner.

The Joint Committee on Intelligence and Security formed its view after examining in detail the variety of ways in which the operation of terrorism laws is monitored.

At one of the committee’s hearings, a witness from the Attorney-General’s Department assured the committee that our system of review by parliamentary committees and government agencies works well, and we don’t need a mechanism such as Britain’s independent reviewer.

The committee may have been flattered but it was not persuaded. It also noted that reviews of the terrorism laws in Australia are sporadic and fragmented.

One of the consequences of this is that certain critical questions do not fall within anyone’s terms of reference: for example, the impact of requirements about the non-disclosure of security-sensitive information on the conduct of trials.

In the committee’s view, an independent reviewer would be able to undertake the necessary ongoing oversight and contribute positively to community confidence as well as providing Parliament with regular reports.

Given the importance of terrorism laws for the foreseeable future, and their exceptional character, it is vital that legislators, the government and the community receive credible independent advice on a routine basis about the actual operations of the measures.

Are the laws effective in practice? Are the safeguards adequate and functioning well? An independent reviewer of terrorism laws would greatly assist us to obtain the information we need to answer these important questions.

The position should be established by legislation to ensure its independence and to allow the reviewer to examine confidential material, both essential requirements to do the job well.

I will introduce a bill in Parliament this week to establish the position of independent reviewer of Australian terrorism laws, whose reviews will be tabled in Parliament.

Appointing an independent reviewer would provide a much-needed additional safeguard for our security and our rights.