James Gullaci, Carey Baptist Grammar School

We have more to fear from the State than from Terrorists

State-sanctioned suppression of civil liberties and denial of universal human rights as a result of the adherence to the principles of positive law provides a much greater threat to contemporary society than the actions of terrorists. There is no universally accepted definition of terrorism(i), and as terrorists have no standing in international law, and attack principally non-combatants, insurrections are treated as criminal acts. Restrictive legislation aimed at preventing terrorist activity, however, flagrantly impinges on the civil liberties and intrinsic human rights of every citizen. This legislative return to positive law can be compared to the Nuremberg laws passed in 1935 according the positivist theory of jurisprudence.

There are any number of definitions as to what constitutes terrorism and the United Nations Office on Drugs and Crime has asserted that “[T]he lack of agreement on a definition of terrorism has been a major obstacle to meaningful international countermeasures”(ii). Terrorism is not morally acceptable as a form of warfare, principally because terrorist acts are concentrated on non-combatants, playing on the fears of people for ideological gain. Modern international warfare however, accepts civilian deaths as collateral damage resulting from ‘legitimate’ state-sanctioned military attacks. It is arguable that the moral distinction between the two is negligible as the distinction, if any, lies in the objective of the action, not the outcome. Effectively states are not held accountable for their actions, as they legitimise and justify these civilian losses. It must also be remembered that there have been no international terrorist strikes on Australian soil. The Russell St bombing in 1986 has previously been characterised as a terrorist attack, but was perpetrated by Australian citizens. According to Jenkins’ definition of terrorism that refers to the “…use of threatened use of force designed to bring about political change”(iii), the bombing cannot be classified as a terrorist act as it promulgated no political message. This being the case, legislation aimed at preventing terrorist activities is disproportionate in its response and unjustifiable, as it impinges on collective human rights.

Anti-terrorism legislation enacted in Australia in 2004 provided for increased powers of interrogation by ASIO(iv) under the Anti Terrorism Act 2004(v). This Act was further amended in 2005 stipulating that ASIO could detain any person suspected on reasonable grounds of being involved in any terrorist activity for up to 168 hours (7 days), without charge(vi). Detainees held under these provisions are prohibited from exercising rights that are available to persons questioned under domestic criminal laws, such as: the right to have a lawyer present(vii), the right to silence(viii) while, during any court proceedings, detainees are deprived of the privilege against self-incrimination. These provisions go beyond an invasion of privacy and extend to an abuse of civil liberties. These draconic stipulations are also disproportionate when it is considered that the National Counterterrorism Center’s (US) annual report states “651 terrorist acts in 2004 were classified as significant, with 1,907 people killed”(ix). While this is undoubtedly a damning statistic, the number is insignificant when the Australian government compromised the civil liberties of more than 20 million people in the same year. Furthermore, the National Security Information (Criminal and Civil Proceedings) Act 2004, prevents “disclosure of information in federal criminal proceedings and civil proceedings where the disclosure is likely to prejudice national security”(x), which may further encroach on an individual’s right to justice. The implementation of this legislation has suppressed fundamental democratic rights such as the right to a fair trial and increased the executive power of the state. This contravenes the idea of representative government, which is intrinsic to the Westminster System on which Australian Parliament is based. These provisions are applied regardless of the morality of their operation, which is more reminiscent of Nazi Germany, than democratic Australia.

The restrictive focus of the anti terrorism legislation epitomises a return to the positivist legislative ideology that marked Nazi jurisprudence. Positive law holds that there is no essential relationship between the law and morality and is not really concerned with how laws operate in practice or whether it operates unfairly in minority groups.  Nazi jurisprudence was built upon an existing codified system of law and the detachment from any moral base through codification permitted a simplistic positivist approach to law. As the Nazi legal system, post-war, was generally accepted as having created valid legislation under a lawfully constituted parliamentary authority(xi), this resulted in tribunal judges at Nuremberg to consider a natural law approach(xii). A natural law jurisprudence holds that any law that operates immorally cannot be a law. The horrific human rights violations, and the extermination of millions of people under legislation that was valid in Nazi Germany, exemplifies how the legislative power of a state can do considerably more damage to a population, than the actions of terrorists.
The Nazi experience led to a rethinking of positivism and a renewed focus on separation of law and morality. This experience showed that the law cannot be applied blindly, without any consideration of ethics or morality.  The lessons from Nuremberg that led to a returned focus on natural law with its emphasis on morality and human rights, have been forgotten. The law must not be absolute. When the State adopts anti-terrorism laws that are disproportionate to the threat, ignores the moral implications of the operation of those laws and infringes civil liberties, we do have more to fear from the State than from terrorists.

Bibliography
Australian Government Attorney General’s Department (2006), “What Governments are Doing: The National Security Information (Criminal and Civil Proceedings) Act 2004”
http://www.nationalsecurity.gov.au/agd/www/nationalsecurity.nsf/AllDocs/D16EA21E0D42285CCA256FCC0015F336?OpenDocument
accessed on 12th April, 2006
Australian Government Attorney General’s Department (2006) , “What Governments Are Doing: The Anti-Terrorism Act 2004” at
http://www.nationalsecurity.gov.au/agd/www/nationalsecurity.nsf/AllDocs/5AF445420FE0AE94CA256FCC001189F2?OpenDocument  accessed on 12th April, 2006
Australian Legal Information Institute at http://www.austlii.edu.au/au/legis/cth/consol_act/  accessed 12th April, 2006
CNN International. Com,  28/4/05 “Terror Threat to US Called ‘Significant’ at http://edition.cnn.com/2005/US/04/27/terror.report/  accessed 12th April, 2006
Jewish Virtual Library (The American Israeli Co-Operative Enterprise, (2006), “Definitions of Terrorism” ,
http://www.jewishvirtuallibrary.org/jsource/Terrorism/terrordef.html accessed 12th April, 2006
McCoubrey, H & White, N.D. (1993) Textbook on Jurisprudence , Blackstone Press Limited London,
Prime Minister of Australia: Mr John Howard, press release http://www.pm.gov.au/news/media_releases/media_Release1551.html
Tebbit, M. (2005)  Philosophy of Law: An Introduction  2nd Ed , Routledge, New York
United States Department of Justice , Federal Bureau of Investigation, (2006), “Terrorism 2000- 2001” at http://www.fbi.gov/publications/terror/terror2000_2001.htm accessed on 12th April, 2006
United Nations Office on Drugs and Crime, (2006) “Definitions on Terrorism” at
http://www.unodc.org/unodc/terrorism_definitions.html accessed 12th April, 2006

Endnotes
i United States Department of Justice , Federal Bureau of Investigation, (2006), “Terrorism 2000- 2001” at http://www.fbi.gov/publications/terror/terror2000_2001.htm accessed on 12th April, 2006
ii United Nations Office on Drugs and Crime at http://www.unodc.org/unodc/terrorism_definitions.html extracted from the World Wide Web on 12th April, 2006
iii Jenkins, B., (2006) referred to in Jewish Virtual Library (The American Israeli Co-Operative Enterprise, (2006), “Definitions of Terrorism” ,
http://www.jewishvirtuallibrary.org/jsource/Terrorism/terrordef.html, accessed 12th April, 2006
iv Australian Security Intelligence Organisation
vAnti Terrorism Act  2004 (Cth)   http://www.austlii.edu.au/au/legis/cth/consol_act/aa2004187/sch1.html extracted from the World  Wide Web on 12th April 2006
vi s. 23DA(7) Crimes Act  1914 (Cth) as amended by the Anti-Terrorism Act, 2004
vii For example, s. 464C Crimes Act  1958 (Vic);  s. 23G Crimes Act  1914 (Cth)
viii  For example, s. 464A Crimes Act  1958 (Vic); s. 23F Crimes Act  1914 (Cth)
ix   CNN International. Com,  28/4/05 “Terror Threat to US Called ‘Significant’ at http://edition.cnn.com/2005/US/04/27/terror.report/  accessed 12th April, 2006
x  National Security Information (Criminal and Civil Proceedings Act 2004 (Cth)
http://www.austlii.edu.au/au/legis/cth/consol_act/nsiacpa2004575/ accessed 12th April, 2006
xi Tebbit, M. (2005)  Philosophy of Law: An Introduction  2nd Ed , Rouledge, New York p. 35
xii   McCoubrey, H & White, N.D. (1993) Textbook on Jurisprudence , Blackstone Press Limited London, Ch. 3