Foreign fighters laws passed during terror hysteria will be unjust and anti-democratic
Proportionality
is a key element of the rule of law in a democratic society, but George
Brandis has lost all sense of proportion in his feverish push to crack
down on terrorism
is a key element of the rule of law in a democratic society, but George
Brandis has lost all sense of proportion in his feverish push to crack
down on terrorism
‘The more a legal response impinges on liberty the less likely it is to be proportionate.’
Photograph: AAP
It is rarely a good idea for legislators to pass laws in a frenzied
atmosphere. We learned that lesson after 9/11 and will learn it the hard
way once again in the current national security panic.
George Brandis, the attorney general, is trying to push through the federal parliament a suite of “anti-terror laws” that are oppressive and disproportionate to the supposed ill to be stamped out. It seems he will do so with Labor’s support.
The Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill,
introduced today, would see individuals who are merely said to be
preparing or talking about fighting in a foreign country going to jail
for life.
That penalty is the gravest incursion on an individual’s liberty in a
democratic society, and we rightly reserve it for cases where a person
intentionally or recklessly takes another’s life. In other words, we use
the sentence of life for the most serious crime of all – murder.
The Foreign Incursions Act, which has been on the Commonwealth
statute books since 1978 (and which will be subsumed in the Commonwealth
Criminal Code under Brandis’s proposed laws), makes it an offence to be
involved in any way in preparing for undertaking hostile acts in a
foreign country. That means acts of violence against a head of state or
government) in a foreign country.
This involvement could include making available a building for
training, participating in training, attending a training meeting, or
providing funds or equipment. In other words, it covers everyone from
the 17-year-old who tags along with his elder brother for a training
exercise, or the young man who merely watches a training meeting, to the
funder of weaponry for such training.
Should a person who does not actually go overseas to fight in a
foreign country face a life in jail? Or the young, impressionable boy
who simply attends training and meetings because his mates attend? Most
reasonable individuals would surely say no. To impose life imprisonment
on someone who has not been involved in hostilities, who has not killed
or injured anyone, is simply a disproportionate response to the supposed
crime.
Proportionality is a key element of the rule of law in a democratic
society. Philosophically and in practice it means that responses by the
executive and the legislature to societal ills must be reasonable and no
more than is necessary to combat that ill. The more the response
impinges on liberty the less likely it is to be proportionate.
When it comes to punishment and sentencing this principle is acutely
important. To impose a sentence disproportionate to a crime is to impose
a cruel and unusual punishment – a principle which was first set out in the English Bill of Rights in 1688.
This is not the only provision that offends the principle of
proportionality in Brandis’ Bill. He proposes to cancel the social
security payments of those who are suspected of having an association
with terrorism and exempts the government for having to provide reasons
for the cancellation. This will mean families, and in particular
dependants like children, could be forced in into destitution.
The arrest threshold will be substantially lowered so that police
will only have to “suspect”, not “believe” on reasonable grounds that a
person has or is committing a terrorism offence. Given the gravity of
charging someone with a terrorism offence – in that they automatically
lose their liberty for long periods if charged, because bail is almost
impossible to secure – a proportionate response by government would be
to ensure police to do not arrest on mere suspicion.
We should keep a sense of perspective and an eye on ensuring that
liberty is preserved. Proportionality is what we require from lawmakers
in these feverish times. Unfortunately, political and media-driven
hysteria over terrorism is what we’re getting instead. Laws passed in
such an atmosphere will be unjust and will erode our democracy.
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