Anti-Terrorism Law Reform Follows Legislate In Haste, Repeal At Leisure Approach

The national security debate over the past four months has been one of the most revealing about Australian political culture in a long time.

It’s exposed serious weaknesses in parliamentary oversight. It’s offered a case study of how big reform needs careful work. And it’s demonstrated how easily public debate slips into well-worn factions.

On August 5, the Abbott government launched its national security legislative agenda – three giant tranches of new anti-terror laws.

For good measure it also announced it was abandoning the proposed reforms of Section 18C of the Racial Discrimination Act. They were, apparently, a “complication”.

This was as complete a philosophical reversal as Australian politics has ever seen. One day the government was wholeheartedly dedicated to restoring freedom of speech. The next day Prime Minister Tony Abbott was saying that the delicate balance between liberty and security would have to shift, and not in favour of liberty.

But there were actually good reasons for the government to be in such a rush.

A knee-jerk reaction against any and all national security changes is not merely wrong, it’s dangerous. There is no more basic responsibility of government than security.

It’s hard to believe now, but until the 9/11 attacks anti-terrorism policy was the responsibility of the states, not the federal government. The first proper Commonwealth anti-terror legislation was enacted in 2002.

Even after more than a decade, in 2014 there is still a strong case for national security law change. The security environment has materially changed over the past 12 months. The Islamic State has attracted more foreign fighters – Australians travelling to be militants for the caliphate – than any other conflict since the war on terror began.

This is a big problem. A study published in the American Political Science Review last year found that one in nine Islamist foreign fighters between 1990 and 2010 later attempted terrorist attacks in their home country.

So we need to be talking about passport control and how to prosecute somebody under the Crimes (Foreign Incursions and Recruitment) Act 1978. Many of the Abbott government’s legislative changes reflect recommendations along these lines by the Council of Australian Governments and the Independent National Security Legislation Monitor.

It’s all complicated stuff. It’s highly technical and legalistic. It concerns marginal changes to existing legal frameworks.

Yet the debate over anti-terror law changes has been dominated by that school of thought which believes that to offer anything less than uncritical support of government proposals is to downplay the threat of terrorism.

This is incredible considering the number of extra security changes the government has pushed through the parliament over and above those targeted at the foreign fighter problem – and over and above those recommended by the many inquiries into counter-terrorism law in recent years.

The government hasn’t explained why the particular threat of foreign fighters means we need to make it illegal for journalists to report on ASIO operations.

Nor has it explained why IS means we need mandatory internet data retention, a requirement that internet service providers store vast databases of information about their users for two years.

The government’s national security laws look more like a shopping list of security desires rather than a targeted response to the specific foreign fighter threat.

Indeed, if you add all the legislative tranches together, it constitutes a reform program of incredible size. It’s a much more ambitious reform program than anything else the government has pursued, even including the budget. It’s more ambitious than you’d expect from any government in its first year.

But pushing through a reform program of this size in such haste has created problems.

For instance, last week parliament passed a follow-up bill to a security bill that was passed in October, designed to fix problems identified in the earlier legislation.

The debate has exposed some remarkable ignorance of the details of the legislation being proposed.

Take Anthony Albanese’s objection that the security measures threaten freedom of the press. This only came after he had supported those measures in parliament. Labor is terrified of looking soft on security, but that’s no reason not to do due diligence.

Likewise, the Attorney-General George Brandis seems to have been caught off guard by the details of his own bill. First Brandis denied that the restrictions on releasing information about ASIO operations was targeted at the media, then he tried to assure journalists he wouldn’t personally approve the prosecution of one of their number.

These issues should have been resolved while the legislation was being drafted. Not weeks after it was passed.

Then there are the problems the national security reforms have caused for the government’s economic agenda.

The time the government spent negotiating with the crossbench on national security issues not directly related to the urgent foreign fighters threat was time not spent negotiating the $7 medical co-payment and the higher education changes.

Now politics has been reset to where it was left in August. Parliament’s focus is back on the budget and the economy.

The foreign fighter threat is likely to ebb when it becomes obvious to Western jihadis that a trip to the Islamic State is a trip to certain, pointless, death.

But the hurried security decisions made in the past few months will stay on the books for a very long time.