Authors: Andrew Lynch , Nicola McGarrity and George Williams
Publisher: NewSouth
Reviewed by Stephen Keim
The introduction to Inside Australia’s Anti-Terrorism Laws and Trials states that, subsequent to the events of 11 September 2001, 64 separate pieces of anti-terrorist legislation had been passed. That figure had been reached by the end of 2014.
Anyone calculating the number as at the end of 2015 would have to add several further items to that number.
Even followers of the waves of legislation, as they passed through State and Commonwealth legislatures, have found it difficult to retain an accurate impression of the state to which our laws have arrived.
It has been even more difficult to gain an idea of the laws in action. There have been several long trials with multiple defendants and charges. Many rulings on admissibility of evidence and construction of disputed provisions have been handed down. Despite, or because of the large amount of judicial guidance, even the keenest of amateurs struggle to appreciate the effect of the laws in practice.
For these reasons, Inside Australia’s Anti-Terrorism Laws and Trials is a book that needed to be written. And Lynch, McGarrity and Williams, senior members of the Gilbert + Tobin Centre of Public Law at University of New South Wales, were the people to write it. The Centre and the authors have distinguished records in contributing to the debate on Australia’s anti-terrorism laws over more than a decade including by numerous publications, extensive research and constructive submissions to government and Parliamentary inquiries.
It can be argued that the legislative regimes which are brought into existence to combat terrorism are false and hypocritical. Every physical act of terrorism is already a crime under existing legislation: qualifying as murder, kidnapping, arson or some other traditional crime.
Australia’s definition has extra-territorial application. Any act that meets the definition, occurring anywhere in the world, is a breach of the Australian legislation. As a result, Australia has decided to legislate against politically motivated violence, wherever it may occur. One problem with this is that governments, including Australia’s allies use politically motivated violence as a matter of course.
At the same time, many governments are so oppressive (North Korea is a prime example) that many would consider that some form of violent insurrection against those governments is morally justified. However, our laws have no ability to distinguish among political violence that is a legitimate part of war; political violence that is legitimate rebellion; and political violence that is terrorism and a legitimate object of law enforcement and the criminal law.
The international legal system has developed laws that do, objectively and impartially, outlaw political violence no matter by whom, government or rebel, it is engaged in. These laws spell out the concepts of war crimes and crimes against humanity. They already appear in the Criminal Code 1995 . [1] In an international context, these laws do what laws against terrorism purport to do. And they do it much better.
Inside Australia’s Anti-Terrorism Laws and Trials does not seek to present its critique in such strident terms. The chapter on the definition of “terrorist act”, the concept at the heart of Australia’s anti-terrorism laws, is more restrained. Nonetheless, it points out difficulties with the concept and repeats many of the criticisms made by other writers.
The authors point out that everybody’s favourite hero, Nelson Mandela, would have been classified as a terrorist under Australian law. This is because the legislation makes no allowance for harm done as part of a struggle for liberation. They point out that the Australian definition, on the other hand, contains an exemption for certain forms of advocacy and is therefore less broad in its application than that found in the equivalent British legislation.
The COAG Review [2] recommended that threats of action should be removed from the definition. The legislation should, instead, create a separate offence of threatening to perform a terrorist act, the approach used by the rest of the criminal law.
The Independent National Security Legislation Monitor (“the Monitor”) recommended in his 2012 report that acts committed during armed conflict governed by international law should be removed from the coverage of the definition. The point of the criticism that people who act inappropriately in such conflict should not be subject to two different sets of prohibitions: those in anti-terrorism law and those in the law of war.
The authors record another criticism by the monitor. A key element of the definition is the element which requires that the conduct described must be committed with the intent of advancing a political, religious or ideological cause. The monitor objected that proving the motive in prosecuting such crimes comes close to prosecuting a case against a religion. A related criticism might be that the element, although it restricts the range of the offence in some ways, facilitates the placing of a large amount of prejudicial material before a jury describing the defendant’s religious practices.
From these examples, one can see that, while the authors are very moderate in their criticism of aspects of anti-terrorism law, and often go out of the way to defend the law against criticisms, Inside Australia’s Anti-Terrorism Laws and Trials is very valuable because it places before the reader the current state of learning on the particular aspect being discussed at any point in the book.
As well as discussing the definition at the centre of the legislation, Inside Australia’s Anti-Terrorism Laws and Trials has a chapter on all the related prohibitions of any kind of preparatory step vaguely intended to lead to a terrorist act; a chapter on terrorist organisations and the different ways in which an organisation may be found to meet the concept; a chapter on the prohibition of providing finance for terrorist organisations; and the more recently enacted legislation against foreign incursions, [3] a form of deemed terrorism.
There is a chapter that looks specifically at the special evidentiary and other provisions that have been enacted for terrorist trials and some of the responses by the courts to ensure that such trials are conducted fairly. There is a chapter on the special police powers that have been provided to discover and investigate the new offences and another on the role and powers of intelligence agencies.
Each area treated uses and reproduces critiques from existing reports and writing in the same way as the chapter on the definition of “terrorist act”.
Some of the harshest criticism in Inside Australia’s Anti-Terrorism Laws and Trials is reserved for the way in which Parliaments have been prepared to enact legislation in a rush and then reluctant, for political or other motives, to correct their mistakes when they become obvious.
Inside Australia’s Anti-Terrorism Laws and Trials is an accessible, restrained, documented, scholarly and important publication. It is a must have for anyone interested in having more than a superficial understanding of the wave of laws that have been passed by Australia’s Parliaments since September 2001.
Those of us who seek such an understanding are greatly indebted to the authors for their work.
Stephen Keim
See the Counter-Terrorism Legislation Amendment Act (Foreign Fighters) Act 2014
