A Threat More Pervasive than Terrorism.

The threat of a terrorism act instils a sense of uncertainty into most people. Simply looking at articles in relation to the attack upon America on September 11, 2001, clearly emphasizes the shock, grief and pain endured by all those who witnessed the events. For over 60 years, America had been considered safe from such terrorism plots, yet with the apparent imminent threat now perceived upon society, new laws were seemingly forthcoming to protect individual safety. In the months and years after the attack, hysteria was ubiquitously menacing, people scrambled to independently protect themselves from the ‘terrorists’, and the government began promoting that stronger laws must be set in motion to protect liberties of the innocent, and the impartiality of ‘free-will’ .

Akin to a virus’ spread, the fear of another terrorism act swept from one person to another with the transmission seemingly inexorable, inevitable and inescapable. Fuelled by the government, the ambiguous and uncertain future pervaded that without laws that limited the evil of these few extremists, the ‘free world’ could be jeopardised. As of 2005, with the implementation of terrorism laws within Australia, many people believed the beginning of a new era of limitation of liberties was inevitable. The chilling effect of such provisions to discourage free-speech and free-will, merely permits the government to further regulate the autonomy of its society, which although seems reasonable in an extent to protect, it is a startling paradigm upon our concept of a libertarian civilisation.

John Stuart Mills version of libertarianism is often described with the simple analogy; “ones freedom stops when a fist is about to hit another’s”, not in a literal sense, but as a metaphor that one should be able to say what one thinks as long as it does not bring detriment to another individual . Since Australia is a democracy based upon this premise, it would seem likely that within the constitution it would be evident that these rights should be preserved. Yet, Australia lacks laws that protect freedom of speech, freedom of liberty and even freedom of thought. Unlike the American republics ‘Bill of Rights’, Australia lacks shield laws which would protect journalists who are considered a 4th estate to the government. Before 2005, media within Australia was concerned that the freedom of protecting its sources could be jeopardised, after the introduction of the Federal Terrorism Act 2005, it became apparent the media had no rights in relation. This vivid contrast of fundamental democratic rights being discarded for the benefit of a supposed greater safety is often considered derisory. For who will watch the government, if the government is untouchable, and similarly, who will stand as a mediator if all those who oppose a regime are silenced?

The prospects for news media in Australia looks dismal in comparison to what they could, and now are able to broadcast. Since the adoption of the federal Anti-Terrorism Act, controversy has not ceased over the detainment and charges issued upon the grounds of the legislature. With new definitions of terrorism and treason, both now punishable by life imprisonment, the legislation contains powers to proscribe organisations, freeze their funds and jail their members for alleged support of ‘terrorism’. In addition, it reverses the burden of proof for a range of serious offences, effectively requiring defendants to prove their innocence . All facets of the federal Anti-Terrorism Act 2005 clearly represent breeches in civil liberties and freedom of expression, which for a practicing journalist, is compromising and exceedingly vexing. Above all, the most serious demoralizing attribute to the anti-terrorism laws is the encompassment of the right to detain people in police custody without charge and interrogate them incommunicado, without access to legal advice . As a journalist, it surely instils a fear of the uncertainty, which the laws may inhibit. If a journalist was to incite an irrational dispensation between civil morality and individualistic rights, they could be charged with encouraging treason. Upon this premise, it appears impracticable if not impossible to comment on problems within society and government without a fear of incarceration and civil espionage. If anything, this would be encouraging Machiavelli’s view of ruling through fear, opposed to the libertarian approach of individual freedom and civil liberty. Conclusively, there is also the impending trepidation that, “basic safeguards of freedom from arbitrary arrest should not be compromised in this way, or the State itself becomes a terrorist” .

Recently, a submission from a woman in New South Wales, implied that the Bills being proposed are not really going to be used to defend “Australia against terrorism, rather they will use the ‘war against terrorism’ against voices of dissent within the Australian community . Surely then, if members of the general public are apprehensive of such depravation of liberty, the media would be in total uproar. Under these new laws, the limitation of information of why and how detainees of suspected terrorist offences are being held is impermissible. Correspondingly, if a journalist obtains information, which has certain confidentiality, and the federal police deem it to contravene the bill, they could face five years in prison, or worse, if a journalists hints at the whereabouts of a terrorist, they would definitely be prosecuted and jailed . Chilling effects of anti-terrorism laws can already be seen with the case of Toni Locy, a professor of journalism, and a USA Today reporter, both being trialled for contempt of court for not divulging sources for two articles written about a terrorist attack involving anthrax . Not only is there a risk of penitentiary, but the divulging of such information poses other risks perhaps greater than the concept of incarceration.

The underlying fundaments of the federal Anti Terrorism Act has been the focus of much debate since its adoption in December 2005. This has been due to its irreprehensible deterioration of civil liberties and abhorrent lack of individual right of freedom of expression and freedom of thought. If anything, it is a chilling recourse of how our rights are being marginalised for the ‘greater good’ of the government. This is nothing more than a vivid contrast of fundamental democratic rights being discarded for the benefit of a supposed greater safety, which is derisory at the least. For who will watch the government, if the government is untouchable, similarly, who can stand as a mediator if all those who oppose a regime are silenced?

References

Sydney Morning Herald, Dan Horrace, 11/09/08.
Philip Ruddock, Terrorism laws: prevention is better than cure, 9/9/08
John Stuart Mill, On Liberty, < http://www.bartleby.com/130/2.html> 9/9/08

Michael Head, ‘The Military Call-Out Legislation Some Legal and Constitutional Questions’ (2001) 29 Federal Law Review 273.

Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs [2001] FCA 1297; (2001) 182 ALR 617 (‘Tampa’).

Submission to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 and Related Bills (2002) vol 1, 244 (Kathryn McCloughry).

Submission to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 and Related Bills (2002) vol 1, 137 (Ruairi Gallagher).
Andrew Jaspan, Anti-terrorism laws threaten media freedom, October 25 2005, 11/9/08.

Mark W Tatge, Journalisms on Trial, 10/9/08.

Mark Pearson, The Journalist’s Guide to Media Law, Allen & Unwin, 3rd Edition, 2007.