It Doesn'T Matter That A Few Personal Liberties Are Lost In The Fight Against Terrorism

There is no doubting that international terrorism threatens Australia, both as a Western nation and in its own right. The Department of Foreign Affairs and Trade (DFAT, 2007) states that "intelligence confirms we were a target before the 11 September 2001 attacks, and we are still a target. Our interests both at home and abroad are in the terrorists' sights."

It is clear that we have to do all we can to prevent terrorism, and security measures are needed to counter this global threat, but since the shocking terrorist attacks in New York and Bali, Australia has introduced more than 20 federal ASIO and "anti-terrorism" laws (Mills, 2005). The implementation of this legislation is certainly a difficult proposition, for how do you counter an enemy who will not show his face? This legislation has inevitably affected our rights but the key question, as a recent paper from the ACT Human Rights Office put it, "is whether the means suggested are proportionate to the legitimate objectives of protecting the Australian community from terrorism" (Grattan, 2005).

Has the threat level increased that much that it warrants such frantic legislating? Or has this legislation been introduced simply as a knee jerk reaction to counter public angst? Whether or not this new legislation is effective in countering the threat of terrorism is of significance and I will exam this further in this essay, but of far greater concern is that key question of whether or not the new laws strike the right balance between ensuring our national security and upholding our important public values and fundamental democratic rights.

The Australian Security Intelligence Organisation (ASIO) Amendment Terrorism Bill, unfortunately, does not strike this balance. De Marco (2002) suggests that "along with life and truth, civil liberties are often the first casualty of war" and in this era of the 'global war on terrorism' the ASIO bill is eroding our civil rights. The terrorist threat undeniably extends to Australia's shores and we need security measures to prepare for, prevent and respond to acts of terrorism and their consequences, but the legislation introduced by the Australian government must not be at the expense of our civil rights. Regrettably, in Australia this is the case, as I will outline by critically evaluating the ASIO Bill and argue that not only is the ASIO Bill unwarranted, it is a violation of our personal liberties, which is not a necessary or acceptable casualty in the fight against terrorism.

(Howie, 2005) argues that these social ramifications may be acceptable if Australia was imminently threatened by terrorism, but Australia is not imminently threatened and the social ramifications of the ASIO Bill are extremely detrimental. The right to silence, right to legal representation, and right to freedom unless convicted of an offence are all basic liberties that need to be safeguarded but are removed by this legislation (Bernie, 2002). It gives the security and intelligence agencies unfettered arbitrary and repressive power and this excessively infringes on our civil liberties.

An example of the repressive nature of this act of parliament can be found in Section 34 F Detention of Persons (Australian Parliament, 2003) of the ASIO Bill. Under this legislation, ASIO can obtain an arrest warrant from a federal magistrate or judge, with the only burden of proof to obtain this warrant being ASIO having reasonable grounds to believe that detaining and questioning someone will substantially assist in the collection of intelligence regarding a terrorism offence (Mahon, 2003). Unlike other criminal legislation, the ASIO Bill allows for people to be imprisoned or punished for ideas, or knowledge, rather than acts, furthermore, they can be detained on mere suspicion, without a specific charge (Nettheim, 2005). That means that you don't even have to have committed a crime, the mere suggestion that someone has passively acquired information is enough to warrant detention under this Act (Bradshaw 2003, Head 2003 and Mahon, 2003). Entirely innocent, ordinary people, who have committed no crime, will be subjected to this regime; this is not a suitable system for a democratic country.

The fight against terrorism must not infringe upon fundamental democratic rights, but the arrest powers under the ASIO Bill ultimately do. This is a huge and preventable departure from existing criminal legislation. Shadow Attorney General Nicola Roxon (2005) argues that this type of detention "fills a gap in our existing laws and justifies a departure from the rules of criminal justice." There is no need to fill this alleged gap with the draconian ASIO Bill. Existing criminal legislation is more than sufficient in handling the crimes associated with terrorism. There are already wide powers of arrest for conspiracy and associated offences by using arrest powers based on reasonable belief that a person(s) are planning a violent attack (Bernie, 2002). If a crime is imminent and police reasonably suspect a person's involvement in that crime, then police arrest and charge that person with conspiracy or attempt (Walton, 2005). The ASIO Bill's repressive detention and arrest powers are both unnecessary and authoritarian.

Even if one were to accept that these detention powers of this sort are necessary, then the appropriate organisation to implement these powers is the police, not ASIO. ASIO is a covert intelligence-gathering agency, not a law enforcement body. With these powers ASIO moves from being a spy agency to becoming the Australian secret police (Bradshaw 2003). The threat of terrorism in Australia is not so great that we should ever consider creating a secret police service, but that is what the Australian government has done by approving the ASIO Bill. ASIO must be subject to the same political and community scrutiny and controls that apply to any other police force. However, currently if you wish to complain about your detention or treatment by ASIO, you have no legal redress. You do, however, have the right to write a letter of complaint to the Director-General of Security, hardly a system of accountability (Bradshaw 2003 and Bernie 2002). These laws have no place in a truly democratic country, and it is not acceptable to excuse this application of a police state upon the Australian public and detaining people without charge as a consequence of the 'war on terrorism'.

Furthermore, people who are detained, have no right to know why they are being hauled off for interrogation. If people resist, violent force, including lethal force, can be used against them. If they refuse to co-operate or surrender information that ASIO alleges they possess, they face five year's jail (Mahon 2003, Head 2003, and Mills 2005). These are horrendous