Protecting democracy by preserving justice: ‘even for the feared and the hated’

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In relation to much of this legislative and procedural overhaul, the ambiguity of key terms has been the result not of poor legislative drafting but of a studied and deliberate attempt to allow for ‘flexibility’ in the application of the Act. Indeed, as Carne notes, a ‘deliberate looseness of statutory language, as employed in the imprecise definition of terrorism, was considered beneficial because of its flexibility’.16 It is this linguistic imprecision that leaves open the possibility of an abuse of executive power through the discretionary interpretation and application of these laws, and the possibility of a form of racial or religious profiling in their implementation. The legislation leaves citizens unprotected from such excesses and reliant on their trust and confidence in the ‘non-abuse of power’ and the responsible application of the laws by those implementing them.17 The Canadian experience has already shown that racial profiling is exacerbated by this linguistic imprecision and its attendant discretionary capability; ‘racial profiling … is the product of discretionary decision-making’ through which criteria of race substitute for genuine knowledge of individual risk.18

The central term on which the legislative regime turns is the ‘terrorist act’. It is important to note that ‘terrorist offence’ is a broad and ambiguous category and is certainly not limited to the carrying out of ‘terrorist acts’. The individual terrorist offences include a range of offences, some little more than tenuously connected with a terrorist act. For instance: possessing things connected with terrorist acts; collecting or making documents likely to facilitate terrorist acts; and other acts done in preparation for, or planning, terrorist acts – whether or not such terrorist acts occur.19 It is this breadth in terminology that allows this and other associated legislative measures ‘to affect a far wider range of people than those who would ordinarily be thought of as terrorists’.20 The organisational terrorism offences are similarly broad and certainly derivative of the ‘naming’ and proscription of an organisation by whatever means: directing the activities of a terrorist organisation; membership (including informal membership) of; getting funds to or from; providing support to; training or receiving training from a terrorist organisation. Not only are these offences in themselves broad, their activation, and hence the question of criminality itself, is dependent on the discretionary exercise of executive power. This extraordinary range of discretionary executive capabilities, occasioned by the studied legislative ambiguity of key terms, is further compounded by the fact that an individual may be deemed to have committed an offence, even though they have not been convicted, and indeed may have been acquitted, of it.21


The imprecision over the language of ‘terrorism’ and the resulting potential for discretionary application, leads to concern that counter-terrorism security measures will be used in ways that are neither appropriate nor efficient, ways that may impact disproportionately upon identifiable racial and religious groups and may impinge upon legitimate political agitation and dissent. Historically, such concerns are not misplaced. It is in some ways fitting that these latest security measures were passed almost exactly 50 years since the final defeat of Menzies’ attempts to pass the CPDA. That Act would have outlawed political organisations by executive decree, allowed for an executive finding of guilt not found since the days of the Star Chamber, reversed the onus of proof and removed even trial by jury at a time of presumed international and national crisis against the then scourge of communism.

Arguments surrounding this issue reveal much about what remains an ongoing security concern – limiting acceptable political behaviour and democratic power by winding back legal and political rights in the name of protecting security. As Labor leader Ben Chifley argued in Parliament, the Communist Party Dissolution Bill 1950 (Cth)

strikes at the very heart of justice. It opens the door for the liar, the perjurer and the pimp to make charges and damn men’s reputations and to do so in secret without having either to substantiate or prove any charges they might make.22

The CPDA did away with established protections before the law, the ‘great principles of justice’23 as the former High Court Justice Lionel Murphy called them, which had been developed over generations, not as obstacles to conviction, but as a means of achieving justice. Such fundamental denials of freedom of political association and natural justice were unprecedented anywhere in the western world during peacetime with the exception, as Justice Michael Kirby has pointed out, of the apartheid regime in South Africa, whose Suppression of Communism Act 1950 was drawn upon by the Australian Act. It is pertinent at this time, as we face contemporary challenges to democratic rights and associated legal principles, to reassess this era and this extraordinary Bill.

In the debate surrounding the CPDA’s provisions, then and since, what has been highlighted is not so much the potential for an executive abuse of a power to outlaw political organisations, but that such a power is itself an abuse, through its disavowal of judicial review of these executive decisions, one which endangered the fragile relations between the arms of government.24 Menzies’ view, expressed after the High Court struck down the Act,25 was that ‘the judgment of the relationship between [this] law and national defence and security … is to be that of this Parliament and of no outside body’.26 Justice Williams perhaps had this sentiment in mind when he queried during argument: ‘Does this mean that Parliament could say that the existence of John Smith, an ordinary citizen, is a menace to the security of Australia and require that he be shot at dawn?’.27

These concerns to maintain protections of judicial review and the trial process in the face of assertions of executive pre-eminence are particularly clear in the historic judgments of the six majority High Court justices in this case in 1951. It is a decision which asserted the finality of the axiom of judicial review which permeates our Constitution and protects all of us from the arbitrary abuse of executive power. It was, as Professor George Winterton has described it, ‘truly an “epochal” decision, probably the most important ever rendered by the Court’.28 The central issues raised throughout that intriguing struggle over the CPDA, ‘about the limits of legislative and executive power and supremacy of the judiciary in deciding such [a] question’,29 also remain at the heart of the current concerns about national security needs and democratic practice.

Despite the obvious political parallels between arguments for enhanced and exceptional security powers during the Cold War and those of the current day, the widespread community concern over expanded executive power, evidenced during the parliamentary committee hearings into the initial counter-terrorism legislation, has not been matched by ongoing public debate, nor by any review of the nature and extent of terrorism in Australia and appropriate response mechanisms. ‘It was as if the threat of terrorism demanded a suspension of democratic critique from proposals constituting an unprecedented increase in executive power.’30 Indeed, with the more recent amendments to the Australian Security Intelligence Organisation Act 1979 (Cth) (‘ASIO Act’), which criminalise public discussion of aspects of the detention process,31 some elements of this debate may well be illegal. Although Bronnitt suggests that it is the ‘war on drugs’, rather than the anti-communism of the 1950s, that ‘provides the template’ for these counter-terrorism developments, seeing parallels particularly in the focus on a collective threat and the normalisation of exceptional criminal justice measures. It is, nevertheless, the primacy of executive-driven national security needs over established democratic and legal institutional forms that is common to each of the legal regimes.32

Several key features of the debate remain unaddressed and ought now to be dealt with. What has been the Australian experience of terrorism? What is the level of terrorist threat in Australia? What are Australia’s existing powers and structures to counter terrorism and are they adequate to meet this level of threat? These questions mirror the legal concerns regarding the introduction of exceptional security measures and the derogation from established criminal justice procedures, as well as concerns that such measures be proportional, appropriate and proximate. These requirements need to be considered politically as much as legally before we determine on a path which takes us into the uncharted terrain of introducing exceptional powers to deal with terrorism in Australia. Yet it was not until March 2004, some two and a half years after the events of 11 September 2001, and long after the passage of the new counter-terrorism legislation, that the Federal Government commissioned a White Paper on Terrorism to be undertaken by Les Luck, ‘Counter-Terrorism Ambassador’, with the Department of Foreign Affairs and Trade.33 There now exists the means for detailed debate and consideration to take place, particularly in relation to the provisions of the ASIO Act which have been significantly amended since the events of 11 September 2001. Thanks to substantial Senate amendment of the original Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (Cth) during its parliamentary consideration in 2002–03, there is now a three year sunset clause34 which is preceded by a process of review of the Act’s provisions and enforcement.35

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