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Australia’s Anti-Terrorist Laws: The Balance between Liberty, Security, and Fear

In the shadow of our most recent military venture into Iraq, Australia is currently debating a raft of new anti-terror laws.

Image by Flickr user Neerav Bhatt

In the shadow of our most recent military venture into Iraq, Australia is currently debating a raft of new anti-terror laws. The first tranche is being debated in Parliament today and the second tranche, those concerning foreign fighters, was released to the media last night. The ostensible reason for this legislative agenda is ISIS and the threat it poses.

That threat has never seemed more real. Last week, because of an alleged plot to kidnap and murder a civilian at random, Sydney played host to Australia’s biggest ever anti-terror raids. This week ISIS released an audio recording that urges sympathisers to attack Australian civilians by any means available. “[S]mash his head with a rock, or slaughter him with a knife, or run him over with your car, or throw him down from a high place, or choke him or poison him.”


Just last night a teenager was shot dead by police, Justice Minister Michael Keenan confirmed that he was a “known terrorist suspect.” Keenan said the teenager stabbed two police officers in an “unprovoked attack”.

Earlier in the week, before he left for New York for the UN summit, Australian PM Tony Abbott made a special address to Parliament on national security, “The delicate balance between freedom and security may have to shift. There may be more restrictions on some so that there can be more protections for others. After all, the most basic freedom of all is the freedom to walk the streets unharmed and to sleep safe in our beds at night.”

Indeed, the delicate balance shifted within that paragraph when Abbott claimed security—the ability to walk down streets unharmed and sleep safely—is freedom. This is an appealing argument, and governments have been making it for a long time. Terrorist acts—potential, realized, or thwarted—are often followed by new pieces of legislation that put new limits on what we can expect to be private, or make illegal activities that previously had no relationship with the law.

A very brief timeline of this pattern in Australia: After September 11, 2001 there was the Security Legislation Amendment (Terrorism) Act 2002. After the Bali Bombings several bills were introduced, including the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003. After the London Bombings the Anti-Terrorism Act 2005 was rushed into law. These are only the highlights; numerous smaller amendments have been introduced throughout the years.


In the past the legislation, as first drafted, gave the government extensive and highly contentious powers that were only amended after widespread disapproval. For instance the security bill of 2002 had a hazardously vague definition of a terrorist act. And the ASIO bill of 2003 initially granted ASIO the ability to detain non-suspects who were believed to have information (of any age) indefinitely while providing them no access to legal advice. A lot of people balked and so changes made the age requirement 16-years-old and over, gave the detainee a lawyer, and limited the detention to a week.

Australian PM Tony Abbott addresses Parliament on new national security legislation.

The extent to which the latest laws will be diluted by Parliament is yet to be determined (so far the leader of the opposition Bill Shorten and his party have shown nothing but support). They were devised months ago, in response to a general threat from ISIS, and are going to be debated and (almost certainly) become laws during a time of explicit threats.

As in the past, if you were to think of them as limited—if they were only going to impact those who support the nationally despised ISIS—they might seem uncontroversial.

However, while they may have been written with a narrow focus, the new powers will be broad. And it isn’t difficult to imagine a hypothetical scenario where the application of these laws becomes a lot more divisive.


For instance the government has proposed giving itself the power to criminalise travelling to places “where the Foreign Affairs Minister is satisfied that a terrorist organisation listed under the Criminal Code is engaging in a hostile activity.” The offense could land you in prison for 10 years. The defendant who travels to those areas would have to provide evidence of a legitimate reason for being there (such as a family visit or a humanitarian mission) for the onus of proof to shift to back to the government. When the prohibited location is the example provided by the Attorney-General George Brandis, the Syrian city of Raqqa, it may seem justified. But what if that location was the home territory of Australian listed terrorist organisation Hamas's Izz al-Din al-Qassam Brigades, the Gaza Strip?

And then there are the proposed changes where an hypothesised application is unnecessary, because they already reek of government overreach and a dangerous loosening of checks on our intelligence agencies. The government wants the power to cancel your passport for fourteen days, and carry out a legally warranted search of your house—and in neither circumstance will your immediate notification be required.

There is a proposed amendment that allows for a single warrant to cover a whole computer network and legislation that will, “require telecommunications companies to retain customers’ phone and computer metadata for around two years”. Not to mention a proposed change that will “give ASIO officers criminal and civil immunity from prosecution”—though, thanks to Liberal Democratic Party Senator David Leyonhjelm that immunity will not extend to torture. (For the source of these quotes and more on the proposed changes follow this link.)


There is something potentially hypocritical about another piece of the legislation. This is a government that valued free speech so much that it wanted to change our anti-discrimination laws, to allow for more discrimination. Now it’s proposing a law that will make it an offense to “encourage” terrorism, including on social media. Granted the final lettering of this legislation is everything, but the slippery slope for our ability to express ourselves freely could be steep.

The Prime Minister has given the impression that he’s levelling with us, that he’s trustworthy, and he was apologetic about the legislation and its repercussions, “Regrettably, for some time to come, Australians will have to endure more security than we’re used to, and more inconvenience than we’d like.”

But as Senator Leyonhjelm pointed out in Parliament this morning, “To those still inclined to support the Bill on the basis of the current security environment, the decency of the Government, and our security agencies, I say this: the security environment will change, the Government will change, and our security agencies will change, but this law, if enacted, will remain.”

What it comes down to is this equation we’ve been posed, between liberty and security. We are giving up some of our liberty and some of our privacy. How much security will we receive in return?

Well, to give you a sense of scale, an estimated 100 Australians are either fighting for ISIS or are suspected of aiding them in some way. So it might seem that for the sake of less than 0.01 percent of our population Australia will be curtailing the freedoms of some 23 million people.


However, that’s not really the government’s argument. They’re not curtailing freedoms against any tangible enemy, they're curtailing freedoms against a hypothetical casualties list. We are giving up liberty for an indeterminate amount of security, for the hope of security.

It might be pleasant to believe that the government is acting in good faith, to ignore the polling uptick and the political pomp of the raids, not to mention the last year’s revelations about governmental attitude towards privacy. It's comforting to think that their only goal is preventing Australian citizens from dying. But even if that were the case the government’s efforts on our behalf constitute a fool’s errand, as the latest missive from ISIS proves.

“Do not ask for anyone's advice and do not seek anyone's verdict. Kill the disbeliever.” In other words, don’t give away your intentions online and don’t talk to anybody about what you plan on doing.

In the last decade some of the largest lists of murdered causalities in the West haven’t come from terrorist attacks, they’ve come from spree killers and mass murderers. Men who act alone, who write confused manifestos of destruction in hardcopy journals and rant into video cameras that don’t have a network connection. We know for a fact that no amount of government surveillance or infringement upon freedom can fully protect you from an isolated individual who dreams of death. If the reports from Victoria are true, just last night such a man sent two police officers to hospital.

In this light the balance is not one of security and liberty. It’s a balance between liberty and fear.

It’s too soon to know how the new laws will end up, and where the debate will take us. But the next few weeks could be crucial.

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