The Legal Legacy of the War on Terror: Tony Blackshield Lecture Series

Last night (10 October 2013), an extremely entertaining and informative lecture was given by Professor George Williams on "The Legal Legacy of the War on Terror" as part of the Tony Blackshield Lecture Series, part of the events of Macquarie University Law School.

Background to the Lecture Series

Professor Tony Blackshield is an eminent Constitutional Lawyer and a previous Dean of the Law School of Macquarie University. In his name, a select group of alumni, staff, students and business representatives gathered to hear Professor George Williams speak. Professor Williams is a specialist in human rights, anti-terrorism law and constitutional law and has appeared before the High Court of Australia and Fiji as well as the NSW Supreme Court. He is a founder of the Gilbert+Tobin Public Centre of Law and is now an academic at the University of NSW.

In this second lecture in the Tony Blackshield Series (following the inaugural lecture last year by Justice Kirby), Professor Williams addressed the enactment of anti-terror laws in Australia as a response to 9/11 and the effect of this enactment on the process of democracy and human rights, reflecting on the nature of the law as a living instrument, shaped by the times and the people who make it.

The Communist Party Case

Professor Williams began his entertaining lecture by drawing similarities between the famous Communist Party Case (Australian Communist Party v The Commonwealth (1951) 83 CLR 1) and the laws of the Constitution challenged by this decision and the anti-terror laws enacted after 9/11.

He was struck by the similarities between the rhetoric repeated after 9/11 and the rhetoric repeated after World War II and how this created an extreme response with the laws enacted at the time to respond to the internal threat of subversion represented by terrorism. This extreme response was reflected again in the Anti-Terrorism laws enacted following 9/11.

Professor Williams argued that in seeking to protect ourselves from the internal threat of terrorism, we need not undermine the democratic rights of freedom, however, that laws of some form were necessary following the threats posed by terrorism from 9/11.

The Unique Position of Australia

Australia found itself in an incredibly unique position after 9/11, as we had no anti-terror laws on the statute books and faced the prospect of making new laws at the worst possible time - while the laws would be marred by the full heat of the controversial actions.

Professor Williams advocates that anti-terror laws were needed especially to:

• Combat funding of terrorism
• Pre-emptive strikes in criminal law
• Greater powers for agencies in surveillance and investigation

However, then the question becomes, were these laws proportionate?

Proportionality of the Anti-Terror Legislation

In the twelve years since 9/11, Australia has enacted 61 separate statutes with no significant or active consultation being released until early this year.

Australia is unusual in this in comparison to other countries like UK and USA, as the level of legislative activism can be considered akin to hyperactivism.

The Anti-terror laws are vast and hinge on the definition of terrorism which does not distinguish between morally justified actions eg. Nelson Mandella and his fight against apartheid, and terrorist actions. Much of the selectivity allowed by the laws has been directed against Muslim and Islamic groups through racial profiling and the legislation includes such elements as:

• Conspiracy and preparation charges with no mental intent
• Warrantless searches of suspects' homes
• Disproportionately lengthy sentences with double the amount of detainment than normal criminal sentences
• Control orders and preventative detention orders lasting up to a year before guilt is even proven
• Powers given to ASIO to bring in ordinary citizens for questioning for up to a week and they refuse to answer they can be jailed for up to 5 years (including children)
• Reporting blackouts for journalists who report on any matter under the laws with possible jail terms
• No right to legal professional privilege
• No right to see all evidence presented against the accused if it goes against national security (which outweighs the right to procedural fairness)
• No concept of a reasonable person - instead a reasonable person is deemed at the level of a mentally disabled person

The Effect of Anti-Terror Laws

 Professor Williams suggests that one reason Australia has such extreme Anti-terror laws could be due to the fact that we are the only democratic nation which does not have the yardstick of a bill of rights.

And, he suggests, that even though many of these laws are not being used, they are being seen as normal leading to similar control order laws like those seen in the states with the anti-bikie legislation.

Professor Williams also pointed to two reviews (reproduced in sources below) which indicate that the laws are disproportionate, lack appropriate safeguards and are corrosive to our democracy, negating underlying legal assumptions about the rule of law like guilt and innocence and the right to procedural fairness.

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Australian Communist Party v The Commonwealth (1951) 83 CLR 1

Law Council of Australia Anti-Terrorism Reform Project (headed up by Justice Whelan)

Independent National Security Legislation Monitor Report into Anti-Terrorism Laws - Mr Brett Walker SC

Australian judge lays down gauntlet for the angels of human rights