Suddenly, it's no longer abstract

13 Nov 2005

LAST WEEK, all the action was in Canberra. This week, it’s happening in the suburbs of Sydney and Melbourne. The players are different but the theme is the same - keeping Australia safe from terrorism.

Taking a step back from the dramatic immediacy of the raids of Tuesday morning and the charging of seventeen men with terrorist offences, we have to realise that those events will have a huge bearing on the ongoing debate about counter-terrorism. This is so in a number of ways.

First, there is the assertion - made most loudly by the key political figures involved but not as readily apparent in the information about the charges brought against the accused - that the urgent amendments passed last week were vital in assisting the police to act. This is clearly not the case in respect of the charges laid against the nine men in Melbourne, who are all up on offences related to directing or being a member of a terrorist organisation under Division 102 of the Commonwealths Criminal Code.

Those sections of the Code were untouched by last week’s Act and remain to be brought in line with changes when the new, much larger, Anti-Terrorism Bill (No 2) is passed. The situation in respect of the accused in Sydney seems to be much more closely connected to the changed law.

The Australian Federal Police Commissioner, Mick Keelty, has said that those men will be charged with preparing for a terrorist act and that this was not a charge available this time last week. One doesn’t want to split hairs, but that’s not quite right. The offence of doing any act in preparation for, or planning, a terrorist act has been in the Code for the last few years. All last week’s change meant was that a conviction could be secured even without showing that the preparations were geared towards a specific planned attack.

Certainly that amendment has given the police more room to move, by closing off a possible loophole which might have caused them to wait until the suspects had settled upon a more definite course of action. But it would be surprising indeed to think that without the amendment the AFP would have desisted from stepping in and arresting potential terrorists the minute their plans demonstrably inched towards execution. The change from ‘the’ to ‘a’ was not so crucial that the law we had was effectively useless.

Second, and somewhat unexpectedly, the events actually have the potential to make passage of the mammoth new Bill harder for the government. Sure, its claims that the threat is real and exists amongst us must be taken even more seriously than they were before. But, such was the apparent effectiveness of federal and state authorities on Tuesday that many are now prompted to query why still more laws are necessary.

Australians can look at the arrests and quite reasonably ask why they should be subject to far-reaching laws on sedition when such a competent counter-terrorism operation was achieved in the absence of restrictions on their freedom of speech.

The schedule in the Bill on sedition is already under fire from the Liberal backbench as a liability, and has been weakened by the attorney-general’s assurance that the provisions would be reviewed early next year. Those proposed laws are more likely than others to be a casualty of this week’s events. They are clearly a sideshow to the real business of fighting terrorism.

It would be good, too, if the arrests led to a rethink on the scheme of control orders. If police now have the means to charge people with a criminal offence for preparing for some loosely known terrorist act - and are prepared to use it - what value is added by being able to impose a control order on somebody simply because there is a reasonable suspicion that doing so will prevent such an act? Surely if enough evidence exists to form that suspicion then enough exists to support a criminal charge so that the individual can be tried in the courts.

What we are now seeing unfold in respect of those rounded up on Tuesday is infinitely preferable to how such people might be treated in a few months’ time if the Bill is passed with the control orders intact. A trial in which the defendant is able to argue their innocence beats a twelve-month control order over a suspect any day. How the courts go about applying these laws will itself make a substantial contribution to the debate over their adequacy and workability.

Until now, the Commonwealth has been busily legislating in the abstract. Suddenly, things have got very real and the road ahead may be more, rather than less, complex.

Andrew Lynch is director, terrorism and law project, Gilbert + Tobin Centre of Public Law, University of NSW. This article first appeared in the Canberra Times.

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