The Need For Preventive Counterterrorism Rather Than Punishing Laws (Essay Sample)

THE NEED FOR PREVENTIVE COUNTERTERRORISM RATHER THAN PUNISHING LAWS
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The need for Preventive Counterterrorism Laws rather than Punishing Laws
Introduction
The concept of terrorism had never been discussed extensively in Australia until the September 11 attack in the United States. Following the incident, international community and individual countries have put in place concise mechanisms that could counter the terrorism menace. Owing to this, Australia has enacted about 48 pieces of legislation touching on counterterrorism. These laws include both punishing laws and preventive laws with respect to terrorism activities. This paper seeks to discuss the extent to which each of the two paradigms have affected civil liberties and the ultimate need for inclining towards preventive laws over punishing laws.[Lynch, Andrew, Nicola McGarrity, and George Williams, Inside Australia's anti-terrorism laws and trials, (Sydney, N.S.W.: NewSouth Publishing, 2015) 7.] [George Williams, Global anti-terrorism law and policy, (Cambridge University Press, 2010) 39] [The paradigms involved here are punishing law and preventive law.]
The Current Legal Framework on Counterterrorism
The most notable provisions on counterterrorism have been codified within the Criminal Code 1995 (Cth). First, there is a definition of terrorism in Section 100.1 of the Code which links terrorism with religious, political or any ideological talk or action which might lead to threats to government and subsequently cause death; property damage or danger in general. This provision stipulates that the Attorney General may proscribe organizations which can be said to be furthering a terrorist ideology. This law opened the floodgates for massive regulation of freedom of association and other civil liberties.[Pietsch, Juliet, and Haydn Aarons. Australia: identity, fear and governance in the 21st century, (Canberra : ANU E Press, 2012) 51.]
Section 102.1 (1) of the Criminal Code 1995 (Cth); further gives powers to proscribe an entity as a terrorist organization if it is deemed to be perpetuating a terrorist agenda. Also, there is the Anti-Terrorism Act 2005 (No.2) basically introduces a new offence of sedition and repeals sedition as it was known in the previous provision. Section 80.2 of the Act enumerates a number of sedition offences which revolve around a person urging others to participate in disorderly acts such as overthrowing the government. Under the law, the Australian Federal Police can also apply to the Federal Courts for control orders to restrict certain freedoms and impose certain obligations on individuals if the circumstances warrant so. The Crimes Act also allows the police more time to detain and question suspects.[George Williams, ‘A Decade of Australian Anti-Terror Laws’ (2011) 35 Melbourne University Law Review 1136, 1145.]
How Preventive Laws affects Civil Liberties
In as much as this paper moots for a preventive approach in legislating on terrorism, it does not support the current trends in the jurisdiction where many fundamental human rights have been trampled on under the guise of counterterrorism. Article 22 of the International Covenant on Civil and Political Rights (ICCPR) indicates that every person has a right to freedom of association. In addition to this, freedom of conscience, religion and thought are also provided for in this document. Additionally, other civil liberties like the freedom of speech are also contained in the International Bill of Human Rights.[International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).] [Under this right, they are right to form and join trade unions and other associations including political parties.] [International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), Art 18 (1).] [The International Bill of Human Rights is a phrase used to refer to the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights.]
Even as these internationally recognized rights exist, the preventive legislation in Australia has gone overboard to inordinately suppress most of the conventional freedoms. As an example, Australian Security Intelligence Organisation Act 1979 (Cth) gives power to the ASIO to detain and question persons who are not suspected of terrorism. Regrettably, this Act does not put in place sufficient mechanisms that would guarantee safeguards to this process such that it is not abused. Also, there is the concept of dead time with respect to police questioning without leveling charges against a suspect, which is often abused by ASIO to unreasonably hold people in custody without due regard to their rights to freedom of association and right to fair trial.[Part 1 Division 2 of the Crimes Act 1914.]
The greatest heights of Human Rights violation were manifested in the case of Dr. Mohammed Haneef. Dr. Haneef , an Indian national who was arrested at Brisbane airport in connection with bombing incidents. The police used the loophole in the Crimes Act to detain and question him for 12 days instead of the normal less than 24 hours. When he was finally arraigned in court, the prosecution applied that he be denied bail but the Judge did see exceptional circumstances for granting him bail. Immediately after release, his travel visa was cancelled because the minister asserted that the doctor had been in close contact with other two terrorism suspects. The charges against him were eventually dropped and he applied for a review against the decision by the minister for Immigration. The Federal Court decided that the minister had misinterpreted the law and this was affirmed on appeal. This case describes the clandestine operations of government authorities to deny innocent persons their rights to freedom of association.[This is not an isolated case of human rights violation. There are many others like the case of Abdul Nacer Benbrika and that of David Hicks where the defendants were subjected to traumatizing limitations of civil liberties without any justified reason.] [Pickering, Sharon, Jude McCulloch, and David P. Wright-Neville, Counter-terrorism policing: community, cohesion and security, (New York: Springer, 2008) 134.]
The Security Legislation Amendment (Terrorism Bill) 2002 (Cth), also empowers the Attorney General to proscribe any organization if he/she deems it to be a threat to national security or even the integrity of Australia. This law confers wide powers on the government such that they could expand the meaning of national security and integrity as much as they can and ban any political organization. In fact, any political party or entity which seems to be opposed to government initiatives or ideologies has been easily wrapped in the proscribed category with haste.[Church of Scientology v Woodward [1982] HCA 78]
How Punishing Laws affect Civil Liberties
Punishing laws are very important rules which must be put in place in order to realize the fundamental rights of people like right to life and the right to live not in fear. While these laws are of high probative value to the well-being of the society, they have come under criticism because of the hefty jail sentences that are meted on people for acts which are very remote in connection with commission of an act of terror. These laws have the propensity of denying a person their civil liberties for an action that should not ideally be connected with terrorism activity.[Nicola McGarrity, Rishi Gulati and George Williams, ‘Sunset Clauses in Australian Anti Terror Laws’ (2012) 33 Adelaide Law Review 307.]
For instance, if a person collects funds or disburses them in a manner that is reckless as to whether those amounts can be used to prepare or carry out a terrorist activity; they are liable for imprisonment for life. This, as a preventive measure is harsh but is likely to achieve the intended purpose of deterring such behavior. There are also laws which allow the police to enter premises in order to prevent an imminent terrorist attack. This provision could out rightly breach the rights to privacy of individuals but it is understandable that it could be for the greatest common good. There is also the preventative detention order in which a person may be held for up to 48 hours without trial and is given in order to prevent a terrorist attack or to preserve evidence related to terrorism.[Paul Fairall and Wendy Lacey, ‘Preventative Detention and Control Orders under Federal Law: The Case for a Bill of Rights’ [2007] MelbULawRw 40; (2007) 31 Melbourne University Law Review 1072, 1078.] [Criminal Code Act 1995 (Cth) schedule 1 (‘Criminal Code’)]
A Comparison and Contrast between Preventive and Punishing Law
As noted in this paper, both Preventive and Punishing Laws have overarching effects on the civil liberties enjoyed by a citizen. For both of them, their enforceability could lead to adverse limitation of people’s right to privacy and freedom of association. However, the point of departure between the two comes when we examine the end results achieved by each law. With punishing laws, they impose heavy penalties on offenders or suspected offenders even when the regrettable fact is that at this point an offence has already been committed. When it comes to preventive laws, they are most suited to tackle the terrorism menace because they have the effect of cushioning the people from a terrorist attack. Preventive laws put away potential terrorists and terrorist scares, thus the more effective of the two.[P...