Howardism stopped but not reversed

We can say this much for Prime Minister Kevin Rudd: he has at least stopped the march of Howardism. But he has done precious little to wind it back.

He has tinkered a bit with better treatment for asylum seekers. He has engaged in a bit of symbolism with Kyoto and Sorry. But most of everything else has been either left in place or shuffled off to inquiries and in the meantime still left in place.

Perhaps the most corrosive elements of the Howard legacy left are the excesses of the anti-terrorism laws.

A Senate Estimates Committee hearing was told this week that the cost of the botched investigation into Dr Mohamed Haneef was $4.7 million. The Haneef fiasco would never have happened without the anti-terrorism laws, nearly all of which were unnecessary. Ordinary criminal law could have dealt with these cases.

Elevating them to a special class by making them part of a “war against terror” has had two corrosive and counter-productive effects. First it changes the label of the perpetrator of violence from “criminal” to “terrorist”. Add to that the adage that one person’s “terrorist” is another person’s “freedom fighter”, and the apparatus of the law turns “criminal” into “fighter”, in the eyes of those supporting sundry Palestinian, Muslim or Arab causes and opposing Israel and US policies in the Middle East.

More importantly, the anti-terrorist legislation undermines the rule of law.

Last week, the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights, established by the International Commission of Jurists, published its report on the effect of the anti-terrorism laws in 40 countries in the seven years since the attacks on the US on 11 September 2001.

Panellists said, “Terrorism sows terror, and many States have fallen into a trap set by the terrorists. Ignoring lessons from the past, they have allowed themselves to be rushed into hasty responses, introducing an array of measures which undermine cherished values as well as the international legal framework carefully developed since the Second World War. These measures have resulted in human rights violations, including torture, enforced disappearances, secret and arbitrary detentions, and unfair trials. There has been little accountability for these abuses or justice for their victims. . . .

“Undemocratic regimes with deplorable human rights records have referred to counter-terror practices of countries like the US [and Australia] to justify their own abusive policies. . . .

“Criminal justice systems, not secret intelligence, should be at the heart of the legal response to terrorism. We have seen intelligence services around the world acting with insufficient accountability and intelligence cooperation being undertaken outside the rule of law.”

The panel warned of the danger that exceptional “temporary” counter-terrorism measures were becoming permanent features of law and practice, including in democratic societies.

This is precisely the position in Australia. The panel said the change in the US Administration might provide one of the last chances to revert to normal legal practices.

The Barack Obama Administration has certainly shown more willingness to wind back the excesses of the Bush Administration than Rudd has for the Howard excesses.

The Howard Government passed more than 40 anti-terrorism laws in a huge over-reaction to the September 11 events. It was a massive volume of hundreds of pages of hastily drafted and enacted legislation. The then Labor Opposition was intimidated into going along with it – not even demanding a sunset clause.

The absence of a Bill of Rights in Australia meant the laws could override long-standing conventions about human rights. The Parliament just handed over excessive powers to the executive. With little or no effective judicial supervision Australia has control orders than amount to house arrest with no trial; sedition provisions that can imprison people for what they say; secret surveillance of people not charged; detention of witnesses for up to a week; sanctions against media coverage even where the powers are abused.

In our attempt to protect our liberties we have eroded them.

These laws are especially corrosive in the current legal environment in Australia. In the past decade or so, High Court judges (with a couple of exceptions) have taken a “legal positivist” approach to both the Constitution and statute law. That approach says: “This is the law and we apply it, no matter how repugnant or offensive it might be to long-cherished standards. The law is the law.”

Do not expect the High Court to be a bulwark against the excesses of the legislature. And certainly do not expect the Constitution itself to be such a bulwark – it contains virtually no effective guarantees against legislative and executive intrusion upon hitherto accepted legal protections – as the Haneef case so pointedly revealed.

Nor should one expect Australians themselves to rise up and demand protections against incursions by government on their liberty. The bulk of Australians are too complacent, naïve or ignorant. A Roy Morgan poll in 2006 found that 60 per cent of Australians thought we already had a Bill of Rights, such is the pervasive influence of American television.

Perhaps this can give rise to a new mantra about constitutional change:  “If it ain’t fixed, then why break it.”

Like Obama, Kevin Rudd was elected by voters with a great deal of hope and promise. Rudd is now half-way into his term and we have had only tinkering on civil liberties, good government and constitutional change.

It is one thing to be justifiably wary of a Gough Whitlam “crash through or crash approach”, but quite another to allow inertia, over-caution and the terror of imagined voter backlash to allow these blots on Australian jurisprudence to remain on the statute book.