‘Not entirely innocent‘, Sydney Review of Books, 17 April 2015 updated
This is a lengthy review article of Inside Australia’s Anti-Terrorism Laws and Trials by Andrew Lynch, Nicola McGarrity and George Williams, recently published by NewSouth. The blurb for the book says in part:
Over ten years after Australia’s first national laws were enacted to combat the threat of terrorism, yet more anti-terrorism laws were passed in the Australian Parliament in late 2014. The first laws were often introduced in great haste and were stunning in scope and number. The latest laws are similarly extensive and controversial. Yet again, powers and sanctions once thought to lie outside the rules of a liberal democracy except during wartime have become part of Australian law.
Sparrow (and the authors of the book under review) stress how the 2014 laws criminalise various ‘preparatory offences’. The individuals whose actions or threats to act provoked the new legislation are remarkably unsavoury. ‘But contemplating a deed’, Sparrow points out, ‘is not the same as committing it – or, at least, it didn’t used to be. The vagueness of the terror legislation – it offers no definitions for its key terms – provides authorities with remarkable leeway in such prosecutions.‘
He goes on that sending people
to prison on the basis not of what they had done, or even what they planned to do, but rather for what they may have wanted to plan sometime in the future, represents a model of legal liability quite alien to liberal democratic jurisprudence, one in which you are judged by your character rather than your deeds. You haven’t bombed anyone, but you seem the kind of person who might.
Sparrow notes the bipartisan support for the new legislation, its impact on the role of journalists, and the fact that it seems to allow security agents to commit a range of crimes against citizens (serious crimes like murder are ruled out) before going on to consider the new law prohibiting the advocacy of terrorism. Again, this law is only likely to directly threaten a person who seems to need threatening.
Sparrow summarises some examples of the treatment of charged terrorists awaiting trial and of suspected terrorists being questioned. In one case, a judge described the treatment of a suspect by ASIO agents as ‘grossly improper’. The charges were dropped but the agents responsible remained at ASIO.
Ul-Haque might not have been guilty. But he belonged to the category that haunts the anti-terror infrastructure: the kind of people who, even if they haven’t actually done anything, can’t be considered entirely innocent either.
Sparrow describes Inside Australia’s Anti-Terrorism Laws and Trials as ‘measured and methodical’ and implies that this adds weight to its findings, two of which are:
[N]o other democratic nation has vested such an agency with a power like that which the Australian government has conferred upon ASIO.
[I]t is undeniable that Australian governments have found it much more palatable to increase rather than limit or review national security measures, tending to ignore reviews which recommend the latter course. The result has been a steady ratcheting up of the power of the state when it comes to the prevention of terrorism.
On the other hand, says Sparrow, the authors of the book accept the premise that new laws have been required to meet the terrorism threat (though they believe the new regime goes too far). This is despite the fact that the incidents of terror have actually been falling since the 1970s – except in countries that have been invaded by the United States during the war on terror, notably Iraq and Afghanistan.
Why, then [Sparrow asks], do we accept without question the notion that the threat of terrorism now necessitates a fundamental shift in the powers we allow the state, in a way that would never have been politically palatable during eras in which political violence was far more common?
Sparrow looks at a number of possible answers and concludes by asking why there is a lack of debate on ‘the single most obvious preventative measure in relation to terror: namely, withdrawal from the ongoing military adventures in the Middle East and elsewhere’.
The Lynch-McGarrity-Williams book and the Sparrow article are a useful addition to a welter of material on Australian reactions to terror, some of which takes a historical perspective and some of which links to broader perceptions of Australian law and governance. Some resources are noted below. most of them dating from October 2014 when the latest laws passed:
- Mark Rix’s 2007 paper asks whether individuals and nations need protection from the state.
- Jessie Blackbourn compares the foreign fighters legislation with earlier reviews.
- Race Discrimination Commissioner Tim Soutphommasane examines the implications of terror legislation for Australia’s multicultural tradition.
- Journalist Mike Steketee also addresses the laws and multiculturalism.
- Terrence McCoy in the Washington Post seems surprised at the new laws, given Australia’s liberal tradition.
- Law professor Ben Saul sees a threat to traditional Australian freedoms.
- Anthony Barnett in the New Statesman from July 2014 believes data surveillance is about state power rather than national security.
- Richard Ackland looks at issues surrounding particularly data retention legislation.
- George Williams rehearses some of the arguments later presented in the book.
- Jeff Sparrow looks back at American experience of terror.
- Letitia McQuade on how governments use fear for political advantage.
- Antony Loewenstein suggests the new laws are a symptom of a culture that is becoming more extreme.
- The Attorney-General’s media releases on the legislation.
- As an example of how deeply one can get into anti-terror measures, there is this ‘Terrorism preparation guide: how to survive a terrorist attack‘, offered to us by an American website. (We do not necessarily endorse other parts of the site.)