Why the commentators got it wrong on the counter-terrorism laws 
Posted By Mirko Bagaric on December 15th, 2005
The Federal Government mercifully rammed the counter-terrorism laws through parliament recently. This will hopefully put an end to the tiresome ‘anti-democratic’ alarmist criticisms of the laws that have been pervaded by lawyer groups, civil libertarians and other ‘smarts’.
While the opposition to the laws will barely rate a footnote in the history of Australian political debate, it is important to understand why most social commentators were so out of step with the mood of the community in relation to the laws.
The supposed draconian measures introduced by the laws were anything but oppressive. Rather they are, on balance, measured responses to a new type of risk. Terrorism differs from your garden variety crime in three ways.
First, in the case of terrorism the victims are selected at random, meaning that everyone is potentially at risk.
Secondly, people who are willing to blow themselves up are almost impossible to stop during the course of an offence. The only defence is to catch them in the planning phase.
Finally, the potential devastation from a terrorist attack massively exceeds the fall out from traditional criminal behaviour.
Control orders, detention without trial and sedition provisions are the government’s response to this new risk.
Despite the claims that these measures ‘spell the end of our hard won civil liberties’ and ‘corrupt democracy’, opinion polls show that the community supports the changes.
Fortunately it is not easy to con the normal punter with the use of grandiose high sounding phrases. The community knows that emotive phrases are often mere puff and that when individual rights clash, we must choose the path of harm minimisation thereby promoting the common good.
You get to bounce back from being unfairly placed on a control order or wrongly detained for up to 14 days; victims of bomb blasts almost never recover.
Further, there is nothing new about the counter-terrorism provisions. Rather they merely extend existing measures to meet the bigger risk.
We’ve had control orders for years. If you hassle an ex-partner or neighbour they can swan down to the local court and control your movements by getting an intervention or restraining order which limits where you can go and who you can communicate with. Detention without trial is a stock in trade risk management practice – that’s why a ‘no vacancy’ sign is often erected at the Remand Centres across the country.
The government did, however, get it wrong in relation to the sedition provisions. There is a big difference between saying something and doing it. Also, the best way to nullify loopy views is to dowse them with copious doses of reality. Making extreme views illegal only drives them underground where they are not subject to counter analysis, thereby increasing the risk that they will in fact be adopted by others.
The government knows that the sedition offence is a mistake. Its justification for the offence was weak and at the last minute it watered down the offence by providing a defence to the media. Despite this, it was never going to fully back down on this front. It already buckled on the proposed shoot to kill provisions and it didn’t want a pattern of yielding to outside pressure to emerge.
Thankfully there is no real risk that the sedition offence will be abused. This law is merely a modern version of an offence that has been in existence but not been used for decades.
Thus, the counter-terrorism laws are no different in nature to existing investigative measures. The difference is only one of degree – as is the size of the threat.
The notion of accountability further explains the discord between the government and the community on the one hand and the ‘smarts’ of the other regarding the merits of the laws. Accountability spurns responsibility which induces pragmatism. If a bomb explodes in Australia, the community will look to the government for explanations.
In a tussle between idealism and pragmatism, the latter always wins the day. That’s why even pacifist parents have been known to smack their children to prevent them from again racing across the road.
This explains why governments in the United States and United Kingdom have introduced similar counter-terrorism measure. It is not that all these governments are compromised of unintelligent, authoritarian individuals. Rather, it is simply that they don’t have the luxury of expounding the sort of teenage idealism that comes with having no accountability for errors of judgement.
Thus, the government was always going to introduce measures of the type that are in contained in the counter-terrorism package. Moreover, future governments will react in exactly the same manner.
Idealists don’t get to govern democratic countries. We are aware that their high sounding principles are a threat to our common good. At best we let them have active observer status, where they can sound off in Parliament but lack the power to do anything. That’s why the Greens and Democrats have exhausted their support bases.
Will the counter-terrorism measures work? They will help so long as they are used sharply to focus on genuine terrorist suspects as opposed to being employed as crude measures to target significant portions of the Muslim community. Still there is no guarantee that we won’t be subjected to a terrorist attack.
In any event, the government by passing the new laws has acquired an insurance policy if an attack does occur. It can say that it did all it reasonably could to advert such an event.
And certainly civil libertarians couldn’t argue against this. Then again, when you have no accountability you get to say what you want. One thing you won’t see is a ‘we were wrong’ statement from them when with the passing of time we find that the skies haven’t fallen in as a result of the counter-terrorism measures.
Not that they need to. That’s one of the splendours of living in a robust democracy – a democracy that has served us well with the passage of the laws.
A version of this piece was published in the Adelaide Advertiser on 13 December 2005.