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New Anti-Terror Laws: Anti-Australian?

21 Oct 2014

Last month, the first tranche of tougher anti-terror bills was passed with overwhelming support from the majority of political parties.

The National Security Legislation Amendment Bill (No. 1) 2014 includes tough new laws such as a decade long jail sentence for anyone who “recklessly” discloses “information … [that] relates to special intelligence operation” or identifies an ASIO agent, as well as give ASIO officers immunity for criminal and civil liability in certain circumstances.

Dr Rebecca Ananian-Welsh, from TC Bierne School of Law at The University of Queensland who specialises in national security law, asserts it is “imperative” for governments to not take the easy path of cracking down harder with new criminal laws.

“We have more national counter-terrorism laws than anywhere else in the world. So, when each new law is proposed I wonder what it truly adds to the national security framework,” Dr Ananian-Welsh said.

“If the laws fill a proven gap in the law then I will gladly support it. But, if the law demonstrates a sever incursion into fundamental rights and liberties for little effective benefit, then I will not support it.”

“For example, control orders, preventative detention orders and ASIO detention warrants effect incredibly severe incursions into citizens’ rights. The latter two schemes involve a complete departure from even the most basic tenets of fair process.”

Furthermore, when Attorney-General George Brandis first made the proposal for the new anti-terror laws, many claimed the new laws would allow ASIO to torture suspects. Brandis has since amended the laws to specify that torture as a means to get information from suspects would not be allowed. Dr Ananian-Welsh deems this as a perfect example of how a “slowed, deliberative parliamentary process and robust scrutiny and debate of national security laws can lead to better outcomes”, but warns of complacency when it comes to monitoring the lawfulness in which basic rights and liberties are violated.

“The new laws give ASIO immunity from prosecution for illegal acts done in the course of certain intelligence operations. Did this immunity extend even to torture? That is entirely possible. Senator Brandis claimed that ASIO would not torture persons, and we have no reason to suspect that he is lying,” Dr Ananian-Welsh said.

“We know, however, that another strong rule of law nation enjoying robust constitutional rights protections – the United States – has at times seen torture and cruel, inhuman and degrading treatment as justified in the national security context. We cannot afford to be complacent that our intelligence services are forever insusceptible to that kind of reasoning.”

These new laws will also introduce potential jail sentences to hate preachers who incite or endorse terrorism. Although Dr Ananian-Welsh feels that “history has proven speech to be an incredibly dangerous weapon,” she declares the new laws will have the capacity to go “too far in inhibiting free speech.”

“I believe that speech designed to incite violence or to vilify or dehumanise a section of the community should be condemned, whether through the common law, anti-discrimination legislation or, in severe situations, the criminal law. However, we cannot understate the crucial importance of free and open debate to preserving democracy, accountability and personal rights and liberties,” Dr Ananian-Welsh said.

“The proposed offence properly criminalises the incitement of terrorism, but also criminalises the promotion of terrorism. This has the capacity to include general statements in support of terrorism that are, for example, posted online to the world at large. Terrorism is defined broadly and could include a range of acts that the Australian public may accept as posing little threat to our nation or way of life.”

“For instance, fighters opposing the Assad regime in Syria may qualify as terrorists under Australian law and, therefore, a Facebook post encouraging their resistance may qualify as advocating terrorism under the proposed laws.”

“The difference between a terrorist and a freedom-fighter has been long debated and is one that depends upon complex global context. Many Australians may support, even unwittingly promote, the activities of freedom-fighters-cum-terrorists overseas.”

However, one of the biggest concerns that have followed the announcement of these new laws has been the potential invasion of privacy after ASIO was given unprecedented power to monitor the entire Australian web essentially with only one warrant. Despite the criticism, Dr Ananian-Welsh believes that “ASIO requires necessary capabilities to allow it to keep Australians safe in the modern age” and understands that “we accept that they require certain invasive, secretive powers in order to keep us safe and prevent grave harms from occurring.”

“Intelligence services traditionally, and quite properly, are all about covert invasions of privacy. How do we maintain the correct balance of security and privacy? To a large extent this comes down to warrants,” Dr Ananian-Welsh said.

“The importance of requiring ASIO to get a warrant before encroaching on someone’s privacy rights cannot be overstated. Anything that ‘streamlines’ or ‘simplifies’ warrant processes or, as in this case, may inherently broaden the scope of a warrant, should be viewed with caution and closely scrutinised before it is enacted.”

“Personally, I am concerned that these provisions water-down the safeguard provided by the warrant process. Now that the provisions have been enacted, I hope that the Attorney-General and others involved in the warrant process place a high price on personal privacy and closely scrutinise warrant requests for their necessity and proportionality.”

Moreover, one of Dr Ananian Welsh’ biggest concerns is that the new laws will encourage ignorance and intolerance in Australia, particularly after some coalition MPs and senators pushed laws to ‘ban the burqa.’

“There may be certain contexts in which important security concerns may require a woman to show her face, or parts of it and in those circumstances I can understand that a woman may be required to remove her burqa or opt for a less concealing option,” Dr Ananian-Welsh said.

“If the government is concerned for the welfare of women in Muslim communities then there are a host of community outreach and support programs that could be encouraged in this respect. Banning a form of clothing worn by one section of the community does nothing if not targeting and alienating one facet of society based solely on religion.”

“In this time of heightened community fear and terror, the local Islamic community will be our biggest strength and asset in the fight against extremism, racism and community panic. We cannot afford to alienate and dictate religious practice to those sections of our diverse Australian community.”

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