Australia needed to enact anti-terror laws after September 11,
but unfortunately the laws that we got often went too far.
This was partly in response to the fact that these laws
were enacted in such haste. They were enacted very quickly
after September 11, the attack in London and elsewhere
and those laws were enacted with regard to community pressure
to enact tough laws to do as much as possible
to deal with terrorism. Another reason that Australia
has problematic anti-terror laws on the books is because
we are the only western nation in the world that does not have
a Bill of Rights. We don't have a national statement
of human rights that could be useful in assessing whether anti-terror laws
achieve the right balance. A Bill of Rights would for example
remind us of values such as freedom of speech, the liberty of
the individual, the right to a fair trial and other rights.
And these type of values
can be very useful in considering what laws to enact and helping us
get the balance right and ensuring we don't forget these fundamental freedoms.
However, we do need to be realistic about just how useful
a Bill of Rights can be in the midst of a terrorist attack.
As the experience of countries such as America show, the values
in a Bill of Rights can be very easily forgotten
in the fear and grief that follows an act of terrorism.
It's thus the case that the yardstick provided by a Bill of Rights
may not be effective when the laws are passed,
but may be more useful after the event. A Bill of Rights can be used
in the years that follow to reassess whether anti-terror laws
have been properly enacted. They can remind us of those values
and enable judges, politicians and others to ask important questions
about whether the laws that have been enacted are the right laws,
or whether they do need to be changed. Other countries are using
their Bills of Rights and other human rights laws
to reassess their anti-terrorist statutes.
A good example has been the United Kingdom where
the new conservative government has actually amended their
anti-terror laws to repeal their control order regime.
That government did so because they wanted to
re-balance their laws, they recognised the need
to better protect liberty and also that they had gone too far.
That means the United Kingdom does not any longer have
a control order regime, they've replaced it
with something else, yet Australia still has
a control order regime w hich we copied from
the United Kingdom but we've taken no like steps
to actually remove that from our statute laws.
The result in Australia is that we have anti-terror laws
on our books that simply aren't found in other countries.
Even the United States has nothing like our
extraordinary ASIO power whereby a non-suspect can be held
for up to a week and forced to answer questions.
The US nor the UK has also sought to pass something like
our sedition laws which enabled people to be gaoled
for for their speech rather than their actions.
All this demonstrates that in Australia we have
relatively weak protections f or human rights and that those protections
can be easily overcome when it comes to anti-terror laws.
In Australia we rely upon the wisdom and good judgement of our politicians,
our elected representatives, to pass the right laws when
it comes to anti-terrorism. We rely upon them to take action
to protect fundamental human rights. Unfortunately our experience of
anti-terror laws shows that that wisdom and good judgement
isn't always evident. For many people, Australia's
anti-terror laws are a thing of the past.
They assume that these laws are off the books now that the hot events
of the last decade are over. But in fact, most of these laws
are a permanent feature of our statute book. They're still there
even if they're not being used. This has proved dangerous
because those laws are becoming accepted as normal rather than exceptional.
They're the sorts of laws that can be
copied by the States, for example in the law and order debate,
they look for new tough laws on bikies and other groups.
In fact, we've seen State Premiers argue that bikies are the terrorists
within their own communities and so they have copied
the Federal Control Order Regime to apply to those groups.
It shows more broadly that even if anti-terror laws
aren't being used, they can provide a source of precedent for law makers
and so can have a profound effect on other areas of Australian Law.
Australia's anti-terror laws have been the subject of a number
of independent enquiries including enquiries established
by the Federal government. What those enquiries have found
is that these laws are often dangerous and need to be fixed.
Most recently, two major enquiries, one by the Council of
Australian Governments and the other by the
Independent Reviewer of Australia's Anti-Terror Laws,
have found that in key respects, these laws are disproportionate,
unhelpful and in fact, in some cases, dangerous.
That's because the laws go too far in the powers that they confer
and often may in fact lead to a situation where new dangerous precedents
are created for Australian Law. These enquiries have for example
recommended the repeal of preventative detention orders
and even the removal of control orders as well as the significant tightening
of a range of offences around Australia's anti-terror laws.
What's clear is that we now have a system of law that does need to be changed.
Unfortunately as yet,
we're not seeing action within our Federal Parliament
to bring that change about.