George Orwell’s political misnomers are still with us.
The Australian (ital) Labor (end ital) Party talks about share issues. The (ital) National (end ital) Party clings to a few seats in just the rural part of the nation. And the (ital) Liberal (end ital) Party proposes draconian laws in the name of fighting terrorism.
Today’s Liberal Party has reverted to the days before John Stuart Mill when liberty was confined to individuals doing what they like in economic markets, rather than political and social liberty for its own sake.
In criminal law, a true liberal would make individuals responsible for intended acts that harm others and punish accordingly. The test for guilt would be an objective one based on evidence and fact.
But what do we find this capital L Liberal Party proposing in its anti-terrorist legislation? — A new class of criminal offence based not upon an individual’s proven criminal intent to harm others, but an absolute liability. Providing training or possessing things that might help terrorist acts or are likely to facilitate a terrorist act give rise to criminal liability, even if the person had no idea that that would be the result or had no intention that that should be the result. Honest or reasonable mistake is not a defence. Rather there is a reverse onus of proof that the accused must prove they were not reckless with respect to the connection with a terrorist act.
It means the onus is on anyone who supplies, for example, petrol or detonators or chemical formulas that they took action to ensure the material was not to be used for terrorism. Some of these offences carry penalties of life or 25 years.
Terrorism is defined very widely – to act or threaten to act to advance a political, religious or ideological cause that involves serious harm to a person; property, public health or safety or an IT system.
The combination means people have great difficulty knowing how to avoid criminal liability.
The Government says that, of course, innocent supply would not be prosecuted. Only real terrorism cases would be prosecuted. If that is the case, why not have the legislation require that the prosecution prove that the accused had an intention to supply for a terrorist act?
Other parts of the legislation allow the Attorney-General to ban organisations on a wide range of grounds. It does not provide a means of challenging the declaration. There are offences punishable by up to 25 years for belonging or helping the organisation. Once again the normal requirements to prove intention are watered down.
This is really dangerous stuff for a liberal democracy based on the rule of law. It reads like legislation from Zimbabwe. The opinion of the Executive to ban organisations carries great weight in the definition of an offence, rather than the intention and action by an individual to harm – that is the classic road to authoritarianism.
The Senate Legal and Constitutional Legislation Committee has unanimously attacked the legislation – though agreeing that some legislative response is needed to the September 11 attacks. The committee includes three Coalition members among its six members. So there is some small breath left in the small l liberals in the Coalition. How far they are willing to take their case and the responsiveness of the Government will be a test for what little remains of the concept of the Liberal Party as a broad church – a broach church which appears to have shrunk to the epistle side of the transept, from where the message goes out to tell people what to think and how to behave.
The terrorism offences are unnecessary. Even after the Hilton bombing in 1977 (about Australia’s only serious terrorist attack) and the Hope Royal Commission into intelligence agencies no-one thought a new suite of offences was necessary. We already have criminal offences dealing with murder, assault and damage to property and dealing with conspiracies to do those acts. They all carry long prison terms. Australia has been relatively free of terrorist acts, so where is the danger that requires this infringement of liberties that Attorney-General Daryl Williams so beguilingly calls “”slight”? We have not had a life-taking aircraft hijack or suicide bombing in Australia. We have had some nut cases, but not terrorists.
The Attorney-General’s Department argued in the committee that the primary reason for developing terrorist offences is prevention. It is twaddle. A law will not prevent a fanatic. If it did, the life term for murder would be enough.
The law will also be a test for Australians. In 1951, the Communist Party Dissolution Bill was challenged in the High Court and ruled unconstitutional. It was a similar US-led piece of over-reaction and paranoia. Then Prime Minister Robert Menzies ran a referendum to change the Constitution to validate the law. It was defeated by the people. This law maybe less likely to
succumb to consitutional challenge. But public opinion is important. The world may have changed since September 11, but there was terrorism before then and there was no need for law like this and the Government needs to be told so.
There is more danger in having these laws than not having them. Then Prime Minister Robert Menzies ran a referendum to change the Constitution. It was defeated by the people. The world may have changed since September 11, but there was terrorism before then and there was no need for law like this and the Government needs to be told so.
There is more danger in having these laws than not having them.