The Law on Terror: An Overview of Counter-Terrorism Legislation since 9/11
Lily O’Keefe discusses various legislative responses to terrorism in the post 9/11 era.
Many UTS students may be too young to remember a time when boarding a plane didn’t involve multiple security checks. However, this ended when the September 11 attacks in 2001 irrevocably altered attitudes to counter-terrorism and, by extension, air travel security worldwide. Since then, the Australian government has enacted over 50 pieces of national security legislation to combat the persistent threat of terrorism at home and abroad. This response has been labeled ‘hyper-legislation,’ and criticized by civil liberties commentator Kent Roach as the most draconian legislation in the Western liberal democracy landscape.
While the laws are designed to equip law enforcement and intelligence agencies to respond effectively to threats of terrorism in a constantly evolving security environment, several prominent civil liberties groups and political commentators believe the imposition of counter-terrorism legislation burdens the rights and freedoms of citizens unreasonably.
This article will pinpoint several significant changes in counter-terrorism legislation since 2001, and then present the dominant arguments for and against the laws.
Significant Pieces of Counter-Terrorism Legislation
March 2002: The Security Legislation Amendment (Terrorism) Bill 2002 introduced “terrorism offences” to the Criminal Code. Previously they were dealt with under the normal criminal law in every state and territory excluding Northern Territory.
September 2003: Australian Security Intelligence Organisation Act 1979 was amended with new provisions allowing a non-suspect citizen to be detained for questioning in relation to a terrorism offence for seven days.
December 2005: Anti-Terrorism Act 2005 sanctions 14 days of preventative detention for suspects of terrorism offences.
November 2010: National Security Legislation Amendment Bill 2010 permits police to search and seize items from premises related to terrorism without a warrant.
Pro-Legislation Response
When former Attorney-General Daryl Williams introduced the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (Cth) (‘ASIO Bill (No 1)’) in 2002, the primary justification for extending intelligence powers was the failure to identify and prevent terrorist threats. It has since remained the dominant paradigm in which counter-terrorism laws have been developed and applied since September 11. Furthermore, prominent anti-terror advocates saw the extensive powers as necessary in order to accommodate for emergency situations, emphasizing that they were only to be utilized as a last resort.
Anti-Legislation Response
Australia’s counter-terrorism regime remains controversial among groups such as Civil Liberties Australia, the Law Council of Australia and the United Nations Special Rapporteur; all of whom express concerns surrounding the undeniable infringements on civil liberties. In addition, Brett Walker SC and Roger Gyles QC in their capacities as members of the Independent National Security Legislation Monitor (INSLM), have recommended significant amendments, and in some cases for the repeal of legislation. Similarly, key commentators like Professor George Williams view the regime as failing to balance between law enforcement’s coercive powers and civil liberties proportionately.
Conclusion
As President of the Israeli Supreme Court Aharon Barak observed that ‘the recognition of individual liberties constitutes an important component of understanding security.’ While current laws surrounding counter-terrorism may struggle to strike an appropriate balance, it will be interesting to see how the far Parliament will infringe on individual liberties in pursuit of counter-terrorism.
Bibliography
Burton et al, ‘The Extraordinary Questioning and Detention Powers of the Australian Security Intelligence Organisation’ (2012) 36 Melbourne University Law Review, 427.
Evans, ‘Balancing religious freedom rights and other human rights’ in Paula Gerber and Melissa Castan (eds), Contemporary Perspectives on Human Rights law in Australia (Thomson Reuters, 2013).
George Williams, ‘Law letting ASIO detain in secret belongs in a police state’, Sydney Morning Herald (online), 23 October 2012 <https://www.smh.com.au/politics/federal/law-letting-asio-detain-in-secret-belongs-in-a-police-state-20121022-281h9.html.>
Inspector General of Intelligence and Security, Further Submission to the Parliamentary Joint Committee on Intelligence and Security, Review of Certain questioning and detention powers in relation to terrorism, October 2017.
Professor George Williams, ‘Does Australia Need New Anti-Terror Laws?’ (Speech delivered at the Lionel Murphy Memorial Lecture, The Australian National University Canberra, 6 November 2014).
Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Scrutinising ASIO’s questioning and detention powers (2017) 1.
Sally Neighbour, ‘Hidden Agendas: Our intelligence services’, The Monthly (online), November 2010 <https://www.themonthly.com.au/issue/2010/november/1289174420/sally-neighbour/hidden-agendas>.
