In a very real sense, the terrorist attacks on the United States on September 11, 2001, reverberated around the world. More exactly, and given both target and instigator, the pervasive feeling quickly spreading globally was that any democratic nation was vulnerable to terrorist strikes from organizations and/or nations virulently opposed to them, or hostile to their influences. Australia most certainly echoed this national concern, as it immediately corroborated the sentiments expressed by the U.S. and the UK in regard to response. The government of Prime Minister John Howard asserted that a “war” had been initiated, and the governmental response would take the form of an indefinite period of preparedness, which would inevitably involve curtailing of civil liberties within the country (Head, Mann 2006: 408-409). Regrettably, and as paralleled by circumstances most notably occurring in the U.S., the government’s response to a terrorist threat has greatly eviscerated the foundations of Australian society and its civil rights. Safeguards must be in place, as the government is obligated to protect the citizenry, yet the excessive application of anti-terrorist legislation, along with the enactment of ill-defined measures, is eroding the liberty of Australia. In seeking to defend itself, Australia, much like the U.S., is subverting its own ambitions and undermining its intrinsic value as a democratic state.
In regard to Australia, the 9/11 attacks on the U.S. were not the defining moment of its implementing anti-terrorism legislation on a large scale. The Al Qaeda bombings were, of course, greatly influential, as the precedent of the world’s greatest power as being vulnerable to militant extremism could not help but reverberate in every nation. With Australia, however, the reaction came about more due to a direct assault on Australians. It was generated by the bombings in Bali a year after 9/11 when 88 Australians were killed by two bombs set off by a militant Islamist organization. Anti-Terrorism legislation was swiftly penned and set in place, to safeguard home interests and protect Australians outside of their native country. As with the U.S., the violence of the Indonesian bombings, virtually at the Australian doorstep, triggered an immediate and radical government initiative. On a more rational level, the Criminal Code Amendment Act of 2002 broadened Australian jurisdiction, in that it allowed for the pursuit and prosecution of suspects when Australian citizens are harmed or killed outside of the country, as in the Bali incident. Other statutes, however, are less strictly protective and go specifically to surveillance within the nation. Howard did not amend its anti-terrorism statutes to reflect the Human Rights Act protections in place in the UK (CHRI 2007: 22). This failure would, in years to come, augment increasing public dissatisfaction with the laws initially welcomed.
The Australian Security Intelligence Organization (ASIO) Legislation Amendment of 2003, for example, rather loosely empowers the state to detain and interrogate any individual believed to be in some way connected to terrorist forces. Similarly, the various updates to the Criminal Code under the name of the Anti-Terrorism Act increasingly reflect more stringent controls on those suspected of interacting with terrorist groups (AG 2008). Observable in all amendments and acts is an inherent reliance on legislative discretion; as terrorism is essentially a covert activity, so do Australia’s laws provide for covert attention and policies.
The anti-terrorism laws in place in Australia since 2002 allow for variations on the definitions of the criminal activity itself and place such definitions dangerously close to police state ideologies and practices. One element, it seems, serves to permit the law to move forward in full force, and that is an identified or suspected connection between an individual and a terrorist state or organization. That force may take strikingly a radical, if not outright brutal, shape. For example, Muslim taxi driver Joseph Thomas became an international figure when, in 2006, he was convicted by the Victorian Supreme Court of receiving money from Al Qaeda, as well as for possessing an illegal passport. The latter is certainly a crime under any circumstances, but the unique aspect of Thomas’s case lay in what was, euphemistically speaking, a “proactive” approach to prosecution. That is to say, controversy erupted when it was learned that Thomas’ statements had been obtained under extreme duress, if not overt torture, at the Barwon Prison’s Acacia maximum security installation (The Age 2006). Prior to this, in 2003, Thomas was held for five months in a Pakistan prison where, as a citizen of Australia, he was “questioned” by Australian officials. The Australian courts themselves deemed it true that Thomas had been “blindfolded, hooded, and shackled” during these interviews, and that the potential rape of his wife was used to coerce him (Bull, Valentine, Williamson 2009: 98). In this single case, centering on one Australian man’s suspected connection to a terrorist association, Australia revealed the scope of its discretionary powers, as well as its extreme commitment to avert terrorism through any means possible.
Conflicts and Issues
If any single component of Australia’s war on terrorism characterizes both its zeal and public opposition, it is within the extraordinary range of powers increasingly given to the ASIO. Since 2002, as predicted by the climate of fear following the bombings in Bali and the 9/11 attacks, the ASIO has been granted virtually limitless discretion in how it chooses to investigate the possible terrorist activity. Its most blatantly intimidating ability, fully sanctioned by law, is the right to detain adults and children for a two-day period, under circumstances plainly in keeping with a militaristic regime. Detainees are not permitted to contact friends or family during this interrogation. They may be strip-searched, and they are legally denied a right to silence; failure to respond brings with it a five-year prison sentence. Legal counsel is allowed only after the two-day period ends. Moreover, and most crucially, there are no parameters establishing suspicion beyond those asserted by the ASIO itself (Lynch, Williams 2007: 35). In terms of scope and legal responsibilities, the ASIO virtually resembles a secret police force engaged by a despotic state. While the ASIO serves a democratic nation, it does so empowered in a manner out of keeping with the basic foundations of such a nation.
The issue is, at best, difficult. The ASIO is, in many ways, a key figure in ensuring the continued safety of Australians, as the organization works very closely with the federal and state police agencies. Moreover, like the CIA of the U.S., the ASIO typically engages in exacting methods of piecing together information, and this approach is necessary when dealing with a threat that may be identified only as seemingly random bits of information (Lynch 2007: 101). It has a job to do, and a crucial one. Nonetheless, it is also notorious for guarding its methods, as well as the information it retrieves. Cooperation exists with other branches of law enforcement, but not in a wholly reciprocal fashion (Lynch 102). This is highly reminiscent of the 2001 Patriot Act of the U.S., which radically relaxed legal restrictions on government surveillance of personal information.
It appears that a substantial factor in Australian reaction to the ASIO presence is marked by a duality of interests, as well as significant confusion. That is to say, and going back to the early ASIO responses to the Bali attacks, it is unclear to an average Australian where military presence begins and civil authority ends. At that time, the Howard administration reacted in a militaristic fashion, and the severity and immediacy of the bombings made such a reaction acceptable to the populace. What was less so was the aftermath. Simply, the public did not understand the constitutionality of a military presence in force after the crisis was ended (Hocking 2004: 88). It is probable that any society, in the immediate throes of the turmoil generated by a terrorist attack, will accept, if not embrace, an overt policing force in action and bestowed with emergency powers. In 2002, in Australia, Labour state governments complied in referring their own constitutional powers over terrorism to the federal government (Lewis, Brownsword 2004: 30). The extremity of this course clearly indicates that certainly at the time, the nation was uniting to combat a literal and potent threat. Party differences were set aside, as occurs when an external danger demands a unified response, and consequently a greater trust in the federal administration.
In Australia, however, as in the U.S., a different set of priorities appears to emerge when the smoke clears and the urgent danger is past. The Australian citizen no longer perceiving an imminent threat then views governmental restrictions – and intrusions – in a very different light. Constitutional privileges assumed by the government are seen as weakening, if not eradicating, constitutional rights of the people.
The 2002 bombings in Indonesia evidently brought home to Australia that the U.S. was not the only target of militant, Islamist violence. Following the example of the U.S., or simply acting as it otherwise would, Australia immediately implemented a series of laws bestowing large and somewhat undefined powers to its homeland security agencies, most particularly the ASIO. Arguably, the intrinsically secretive methods of terrorism call for an equally covert awareness and strategy, if further violence is to be averted.
What is regrettable is that, in Australia as in the U.S., extremes of fear have been permitted to weaken or eliminate civil liberties, and this is tragically evident in the Thomas case. The reality is inescapable: when a democratic government sanctions torture and inhumane treatment of any suspect, it waives its right to be deemed a democratic society. Had Australia been prescient enough to enact its anti-terrorism statutes in accordance with human rights protections, this ugly scenario could not have occurred. The government is obligated to protect the citizens, to the best of its ability, and the citizens have the right to feel safe in their homes and communities. Nonetheless, when that government exceeds its authority through the ignoring or obliterating of the basic human rights at the core of its being, it violates the public it is in place to protect.
- Australian Government (AG). 2008. Australian Laws to Combat Terrorism. Retrieved from http://www.ag.gov.au/agd/www/nationalsecurity.nsf/AllDocs/826190776D49EA90CA256FAB001BA5EA?OpenDocument
- Bull, R., Valentine, T., and Williamson, T. 2009. Handbook of Psychology of Investigative Interviewing: Current Developments and Future Directions. Malden, MA: John Wiley & Sons.
- Commonwealth Human Rights Initiative (CHRI). 2007. Stamping Out Rights: The Impact of Anti-Terrorism Laws on Policing. London, UK: Commonwealth Human Rights Initiative.
- Head, M., and Mann, S. 2009. Law in Perspective: Ethics, Society, and Critical Thinking. Sydney, AUS: University of New South Wales Press.
- Hocking, J. 2008. Terror Laws: ASIO, Counter-Terrorism, and the Threat to Democracy. Sydney, AUS: University of New South Wales Press.
- Lewis, N. D., and Brownsword, R. 2004. Global Governance and the Quest for Justice: Human Rights. Portland, OR: Hart Publishing.
- Lynch, A. 2007. Law and Liberty in the War on Terror. Sydney, AUS: The Federation Press.
- Lynch, A., and Williams, G. 2007. What Price Security? Taking Stock of Australia’s Anti-Terror Laws. Sydney, AUS: University of New South Wales Press.
- The Age. Feb. 26, 2006. “Thomas Convicted over Al-Qaeda Funds.” Retrieved from http://www.theage.com.au/news/National/Thomas-convicted-under-terror-laws/2006/02/26/1140888736669.html