Australia’s continuously expanding counter-terrorism powers

On the Friday before last, the Prime Minister and State and Territory leaders unanimously agreed on another expansion of Australia’s counter-terrorism powers. The proposed law would keep convicted terrorists, if they were deemed to be un-rehabilitated, detained after their sentences have been served.

The following Friday saw another news report on counter-terrorism legislation. The Australian reported on how decisions to revoke the citizenship of dual-national suspected terrorists (based on legislation passed in December) would be made.

The government has created a Citizenship Loss Board, which includes members of “ASIO, ASIS, the Australian Federal Police and a raft of bureaucracies, including the ­Attorney-General’s Department, the Immigration Department and the Department of Foreign Affairs and Trade”. According the report, the government is prioritising Islamic State (IS) members believed to be intending to return to Australia, but has still “cast the net as wide as possible”. It is currently unclear what role the judiciary will have.

These two reports, within the last fortnight, caused little controversy. But they demonstrate the illiberal trend that marked Australia’s counter-terrorism approach under the Abbott government, and which has become normalised under the Turnbull government.

Under Abbott, jihadist terrorism was portrayed as an unprecedented danger that required a constant rush of new laws. From September 2014 onwards, the government declared every few months that many of Australia’s counter-terrorism laws were inadequate and soft, and that new laws to increase the power of security agencies were needed.

To be clear, there are exceptional aspects to terrorism when compared to most other types of crime. These include:

  • the harm that one single major attack can do, in the form of mass deaths and injuries, enormous economic damage and dramatic political consequences;
  • the expectations on security agencies to intercept plotters and prevent attacks rather than just investigate attacks after they occur;
  • the transnational conflict aspect, whereby the terrorists are often inspired, assisted or directed by sub-state military entities at war with our society.

These aspects make some departures from traditional crime-fighting approaches justified, provided they are effective, proportionate, and consistent with human rights.

But most of these adjustments were already made a decade ago, with the legislative framework put in place by the Howard government after 9/11.

This older legislation did have problems, in that some parts went too far and others were unnecessarily complex. That was an unsurprising outcome of so much legislation being pushed through Parliament in such a short time (one international observer described Australia’s approach as “hyper-legislation”). But several of its core components were necessary and justified.

Measures such as passport confiscation, ASIO’s compulsory questioning powers, proscription of organisations and the criminalisation of preparatory activity for terror attacks, proved useful for Australia’s counter-terrorism efforts. Reviews by Independent National Security Legislation Monitor, and an independent review established by the Council of Australian Governments, judged these particular measures to be effective and appropriate. The jury is still out on some of the other measures introduced in that period, such as control orders.

So Australia already had a robust counter-terrorism regime. There was scope for changing some of the laws, given the evolving threat, changes in technology, and some of the shortcomings identified in the independent reviews. As the potential threat resulting from the Syrian conflict was apparent from at least 2012, there was an ideal moment for careful deliberation on how Australia could best adjust its laws.

Instead, there was little action at all until June 2014 (when IS seized Mosul and declared a “Caliphate”) and then we got another round of “hyper-legislation” in the form of constant tranches of new legislation.

With at least five tranches passed so far, Australia has a greatly expanded body of national security laws. Some of these measures were sensible and justified (fast-tracked passport confiscations, increasing ASIS’s ability to spy on Australian terror suspects overseas, allowing “special intelligence operations”), some were unjust (citizenship-stripping, no-go zones, the excessive media restrictions in the “special intelligence operations” legislation), and some were ambiguous (lowered thresholds on a range of existing powers like control orders). But regardless of where one stands on each specific law, it is clear that all the changes went in one direction.

They all involved increases in government power, explicitly at the expense of liberty.

This approach, of treating the terror threat as so exceptional that more and more departures from traditional rules of evidence and rights protections were constantly needed, was accompanied by apocalyptic rhetoric. While such rhetoric has been a feature of Australian security politics for over a century, it reached a remarkable level under the Abbott Government. Attorney-General George-Brandis described the threat as existential, while Foreign Minister Julie Bishop likened it to the Soviet Union.

The whole approach contributes to a wider polarisation. For some small parts of the community, this approach risks feeding fears that the current threat of al-Qaeda and IS-inspired terrorism is a catastrophic and unmanageable problem, contributing to the backlash against multiculturalism. For other small sections of the community, it risks feeding fears that terrorism is a phoney threat manufactured to increase state power and smear Muslims. Rather than facing the threat with calmness and unity, it encourages fear and unnecessary division.

When Malcolm Turnbull came to power, his rhetoric signalled a different approach. He did not portray the threat as catastrophic or frame it in a way that risked implicating Muslims collectively. His rhetoric acknowledged the seriousness of the threat but projected optimism about overcoming it.

However, even the inclusive language is under challenge, and the “hyper-legislation” approach has barely slowed down.

The news reports over the last fortnight, of potential indefinite detention post-sentence and the creation of the Citizenship Loss Board, show how normalised this type of law-making has become. Other ideas suggested by Federal and State politicians have included secret trials and 28-day detention without charge. With Federal MP Andrew Nikolic (who is now Chair of the Parliamentary Joint Committee on Intelligence and Security) having declared after the Paris attacks that civil liberties debates were now “redundant”, it looks like Australia will keep steadily heading down this path.


2 thoughts on “Australia’s continuously expanding counter-terrorism powers

  1. So, if I’m reading your assessment correctly Andrew, we’ve had rights stripped away from us, because of a fear of terrorism, that has been created or magnified by the Government’s own rhetoric ?

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