Introduction
Since the terrorist attack on September 11, 2001, in New York City in the U.S, the world has been more alert on terror threats and attacks than ever before. Governments have enacted laws to protect and safeguard their citizens against terrorism activities, as well as laws to try to suspect and prosecute terrorism culprits. In the quest to protect citizens, some governments have gone to the extend of inflicting torture on terror suspects in need to obtain some information from the suspect, which raises concern about the suspect’s civil liberties in enforcing the law (Dershowitz 2002). This gives rise to the concern on whether anti-terrorism laws maintain a balance between the protection of citizens from risks, threats, and actual terrorism activities and the preservation of civil liberties. This paper will seek to analyze the Australian anti-terrorism laws on the above-mentioned concerns.
Australian anti-terrorism laws
Since the September 11 attacks, several anti-terrorism laws have been passed in Australia. The manner, in which the laws on ‘war on terror have been enacted and implemented, has greatly been disturbing. According to Joo-Cheong 2004, the Australian anti-terrorism laws grant the countryâs police and other security agencies the power to arrest and detain terror suspects without trying them. These laws against terrorism conceal police and the security organizationâs operations against terrorism in great secrecy, speeches that are criminalized, and above all, the risks of prosecutions on political or religious factors.
Among the recently enacted anti-terrorism laws in Australia, which have been criticized for undermining democracy in the law-making process, are as follows. The ASIO Legislation Amendment Act of 2003 and the Criminal Code Amendment Act of 2004 (Terrorist Organizations). Though the laws were enacted to protect the Australian citizens against terrorism, the majority of the citizens criticize them arguing that they have inflicted causalities in several ways.
Undermining democracy in the process of law-making, being passed with lewd haste, misrepresentations, and stifling of public discussions, and conferring arbitrary power to the cabinet are among the major criticisms that rose against the enactment of the laws (Joo-Cheong 2004). These critics point out clearly that the laws have failed in preserving the civil liberties of Australian citizens.
The Australian Security Intelligence Organization (ASIO) has been given the power to solely request a warrant, question and try terror suspects compulsorily. The organization can therefore decide to detain persons who have been suspected to have links or information on offenses related to terrorism. Before a warrant is issued, a lot of legal bureaucratic processes must be undergone. The attorney general should approve the request, the approval should then be granted to the warrant issuing authorities and the execution of the warrant should then be supervised by another body that has “prescribed authority”. The power granted to the organization undermines the democratic processes required in the law, which greatly hamper civil liberties, especially those of the suspects.
The ASIO amendment Act and the Criminal Code Amendment Act confers arbitrary power upon the organization and the attorney General respectively. The latter has got overall power to ban any organization deemed a terror. These acts breach the laws of democracy and civil liberty of the general public since they are locked out in judging whether the anti-terrorism measures prescribed by the laws are effective or not(Joo-Cheong 2004).
Dershowitz 2002 maintained that execution of warrants should not be made by single or unaccountable law enforcement organizations or officials, but by all stakeholders including the citizens. The optimal authority should come from the head of the state, or senior judicial officer, and through all the necessary legal processes as prescribed by the rule of law. On the contrary, innocent citizens can suffer imprisonment and torture poor execution of warrants on terror suspects.
Sometimes torture is justified and works especially when crucial and necessary information to avert possible terrorist attacks. A good example is the case of the ticking time bomb, where numerous people’s lives are endangered. Torture on a suspect who can lead to viable information can be the next best solution. However, the torture conundrum in such a scenario can be solved through the establishment of strict legal frameworks, which follow full legal processes in obtaining leading information from the suspect. The suspect should be handled in such a manner that does not breach his rights and freedom. In such an environment free of torture, more viable information is more likely to be obtained and cases of torture being minimized.
After the amendments of 2002, many more bills on Anti-terrorism have been passed in Australia. The anti-terrorism act of 2005 (No. 2) was aimed at amending the anti-terrorism law. Among the main features of the act was to allow police to detain a suspect for a maximum of 48 hours waiting for a charge. Authorities were however not serious in following the Act as evidenced in the case of Muhammad Haneef who was charged two weeks before his arrest. ASIO Legislation Amendment Act 2006 shed some light on the full legal process of issuing and questioning warrants. It advocated for immediate assessment by the proscribed authority to a person under a warrant.
The classification Amendment bill 2007 was enacted to protect the Australian citizens from terrorist activities or threats via films or computer games advocating doing a terrorist act. Many more amendments bills were passed since the major anti-terrorism laws of 2002 (Rose & Nestorovsk 2007).
The case DPP versus Thomas which the court of appeal of Victoria decided on 18th of August 2006 was the first to convict a person after the September 11 attacks. Thomas was convicted on charges related to terrorism, particularly on soliciting funds from the terroristsâ organization, Al-Qaeda. Before the convictions, the trial judge noted that the AFP interviewers went into accordance with all stipulations as stated by the law and that the interviewee’s legal rights were not violated. He assessed that the interview was conducted fairly. However, critics’ accusations befell the judge claiming that several laws he had made were erroneous.
From the public’s point of view, the executions of laws in deciding the case were not just and democratic enough. The case of Dr. Muhamed Haneef exposed the governmentâs tyranny in detaining the suspect indefinitely without charging him. The two cases showcase the Australian violation of civil liberties in the name of combating terrorism.
According to the Civil Liberties of Australia (CLA), the Australian government can strike a balance between its preservation of its citizenâs civil while maintaining their safety through the following measures. Analyzing and addressing the legal professional privilege in the context of a vital human right. Amendments should be done to the Act of Freedom of Information, Section 42. The privilege accorded to governmental agencies to solely pass bills and make anti-terrorism laws should be discarded and the general wholly allowed in the law-making process (Civil Liberties of Australia, 2008).
Butler 2004 pointed out that public discussions, as well as an examination of terrorism-related activities and violence, have been prohibited in various countries. The response to terrorism in Australia is no exception. The public was not consulted in the enactment of laws regarding terrorism. By the rule of law, democracy should thrive in critical matters which draw the attention of a nation and has impacts on the social welfare of the people. People cannot exercise their civil liberties where democracy does not exist (Butler 2004).
Civil- libertarians point out that the terrorism menace has clinched on nations because they have allowed it (Dershowitz 2003). Dershowitz 2003 noted that every violent, criminal and evil act must have a root cause. If nations address the root cause of terrorism appropriately, the terrorist threat may be reduced or eliminated in the world. The terrorism problem works simply because nations are reluctant in encouraging democratic engagements with the entire community in seeking and addressing the root cause of the act in the society.
Civil liberty groups such as the Australian law council have been pressurizing the government to ensure that anti-terrorism laws address the balance between the protection of civil liberties of individuals and their safety. However, the government despite enacting several laws has failed to combat terrorism effectively in addition to striking the balance. Bills have been rammed in the House of Representatives, and government members have not been making any substantive contribution regarding the issue of balance. The situation of the balance between the two issues of concern is getting even worse (Kerr 2002).
Benjamin Franklinâs admonition âThose who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety” fits exactly in the Australian context as stated by (Geoff n.d). Geoff noted that the government was not interested in public thoughts and concerns, in enforcing legislation of Anti-terrorism laws in Australia where terrorism threats were almost extinct. Several bills regarding anti-terrorism were seen as a threat in eroding traditional civil liberties rather than being a protection to the citizens. Anti-terrorism laws such as the ASIO were deemed to threaten citizens’ democratic rights in the name of national safety Geoff n.d).
Conclusion
In Australia, the lack of democratizing the terrorism issue has led to a great imbalance between protecting civilians from terrorism and the enjoyment of their civil liberty. It is a fact that the Australian government has sought for its citizensâ safety against terrorism at the expense of their liberty. The Australian citizens were against how anti-terrorism laws were implemented. Much criticism was specifically on the ASIO Legislation Amendment Act of 2003 and the Criminal Code Amendment Act of 2004 (Terrorists Organizations) among other bills.
Though the agenda of the laws was geared towards protecting the citizens, which was a good idea, the manner of their enforcement was totally against the preservation of their civil liberty. The Australian government traded off its citizenâs democracy and liberty for the safety of the citizens. Indeed the government has failed in maintaining the balance between preserving its citizenâs civil liberty and their safety.
References
Butler J 2004, Precarious, Verso, London.
Dershowitz AM 2002, The case for torture warrant. Web.
Dershowitz AM 2003, Why Terrorism Works, Yale University Press, New Haven.
Geoff M (n.d). New submission of Anti-terrorism laws- ACLU. Web.
Joo-Cheong T 2004, Causalities of the domestic âwar on terrorâ: a review of recent Counter-terrorism laws, Melbourne University Law Review 16.
Kerr D (2002). Australia must debate the implications of the ‘war on terrorism’ argues Wise precautions or impunity for abuses? Web.
Rose G & Nestorovska D 2007. âAustralian Counter-Terrorism Offences: Necessity and Clarity in Federal Criminal Law Reforms.â Criminal Law Journal vol.31 pp20-55.
Civil Liberties Australia (2008). Protecting people’s freedoms Submission – Legal Professional Privilege. Web.