???The first responsibility of the Australian Government is to protect Australia, its people and interests??™ (Protecting Australia Against Terrorism (PAAT), 2006, p. 1). As Australia??™s flagship counter terrorism package, the PAAT has been designed to address and increase Australia??™s regional understanding of the nature of the terrorist threat; identify terrorists and deny them the operating conditions or environment to plan and execute terrorist attacks; disrupt terrorist networks; and strengthen the counter terrorism capabilities of our international partners and allies, (PAAT, 2006, p. 2). The policy in essence aims to establish mechanisms to protect and prepare not only Australia, but our neighbours and allies, to deal with terrorism.
Following the events of 11 September 2001, Australians and Australian interests have been the target of planned or conducted terrorist attack every year since (Bergin, 2007). The Australian Parliament and the Australian community has likewise been engaged in often passionate discussion about the nature, extent and definition of terrorism, its threat to Australia, and the manner in which Australia can best respond. This dialogue has been prompted by events and circumstances of newly seen methods of violence, increased damage and casualties, and a higher standard of planning and coordination. The policy??™s debate has been informed by the threats and responses in the United States (US) and the United Kingdom (UK). It has been held in the context of our growing awareness of terrorist networks and the dormant anger that appears to prompt and sustain terrorist causes once woken. Amidst the debate, one constant has appeared: that counter terrorism, its related policy and activities should be the responsibility of the Australian Parliament.
When the subject of a counter terrorism policy was first raised for public debate, it was a relatively new phenomenon for Australia (Hancock, 2002). On 15 July 2004, following an announcement from the Prime Minister (PM), Mr. Howard, a White Paper titled ???Transnational Terrorism: The Threat to Australia??™ was publicly launched by the Minister for Foreign Affairs, Mr. Downer. Representing the Governments views and analysis, the paper was published on the Department of Foreign Affairs and Trade??™s (DFAT??™s) website, and presents that:
For the first time, Australians are having to come to terms with a security threat neither constrained nor defined by national borders, traditional power structures or formed armies – one that is neither dependent on sponsoring nation states, nor responsive to traditional deterrence. Rather, it is driven by an ideology that is inaccessible to reason, and with objectives that cannot be negotiated.
Mr. Howard however was pursuing an assertive policy far before this ???age of terrorism??™ (Grattan, 2003). 1999 saw Australia??™s involvement in East Timor come about not just from political necessity and past events, but also from the Prime Ministers desire to place Australia as an internationally pragmatic, value-driven and ambitious nation. The issue of foreign policy fast became central to the Prime Minister??™s view of Australia post 11 September 2001. ???Australia??™s foreign policy must be a mixture of bilateralism, multilateralism and action in concert with other nations or groups of nations,??? Howard said.
But the Government is often sceptical about multilateralism: it has a lack of trust of both the will and the views of the United Nations. When pursuing trade, it puts more faith in bilateral arrangements, even while pursuing world trade reform (World Trade Organization (WTO) Doha Round Negotiations, 2001).
How then to create a policy to deal with issues hitherto largely outside the experiences of the Australian bureaucracy A policy that not only represents the Government??™s beliefs and ideology, but one that also accounts for the economic and human rights concerns of both public and private. In most circumstances the emergence of a new policy need typically sees the problems therein identified and formulated, with decision parameters and alternatives put forward (Bridgeman & Davis, 2004). The creation process of the PAAT however was unique in one area; there was no precedent for either its creation or the issues it was to address. Whilst Australia has had experiences with related issues on national security, organised crime and politically motivated violence, we have had few real experiences widely accepted as terrorism (Hancock, 2002), even ignoring the absence of an agreed definition.
To assist in the application of the developing counter terrorism policy the National Counter-Terrorism Committee (NCTC) was established via an Inter-Governmental Agreement on national counter terrorism in October 2002, would coordinate and advance the national counter terrorism arrangements, and is co-chaired by Deputy Secretary of the Department of the Prime Minister and Cabinet, and a senior state or territory official from the jurisdiction hosting the NCTC. It is a central vehicle for counter terrorism policy development and national coordination of information and activities.
A large deal of time was spent discussing and creating the legal mechanisms necessary to implement the PAAT. These efforts were be viewed against the broader canvas of existing laws that deal with ???intelligence gathering, preventative measures, crisis management and investigative and enforcement powers??™ (Hancock, 2002). Arguably, this is an area of some expertise and history to draw upon. However, despite the legal wrangling put into the legislative creation process, there was a limited understanding of what actually constituted ???terrorism and what constituted the terrorist threat.
There have been laws enacted for dealing with foreign incursions, serious offences, defence aid to the civil power (Blackshield, 1978), intelligence services and the implementation of international law. Apart from the possible exception of the Northern Territory??™s Criminal Code Act 1995, Australia has had no legislation specifically tailored to address counter terrorism up until the Anti-Terrorism Act 2005.
The Anti-Terrorism Act 2005 sought to address a number of issues, largely security-focused, that arose from developing a counter terrorism policy. Specifically, the definition of a terrorist organisation; means and methods for the Government to oppose the financing of terrorism, and the reporting of financial transactions; control orders and preventative detention orders for the pursuit and incarceration of suspected terrorists; powers to stop, question and search persons in relation to terrorist acts; power to obtain information and documents; updating the definition of sedition; and incorporating the powers of the Australian Security Intelligence Organisation Act 1979 with amendments.
Apart from legal considerations, some principle cost and resource issues needed to be addressed. Given the economic ties that terrorism threatens, these costs were primarily centered on the likely deficit or revenue that could be gained from tackling terrorism proactively. Specifically, DFAT, through the Howard Government, was interested in: How best to deal with the threat to our regions development that came from an increased risk and prevalence of global terrorism; What were the immediate costs of acts of terrorism including loss of life, destruction or property and depression of short term economic activity; Quantifying the impact that terrorism unchecked had on the confidence in and risk perception of investment and international trade; Identifying the likelihood of greater reliance on trade and capital flows from developing APEC economies relative to GDP from terrorism; The costs of implementing counter terrorism measures against the longer term productivity such activities created; What technologies could be introduced or developed to strengthen security, their costs, and the impact these technologies would have on overall trade costs and efficiencies; Terrorism in one economy may impose high costs on other regional economies ??“ how then to deal with those regions that fail to combat terrorism effectively; and identifying the positive effects from counter terrorism activities.
For all this scrutiny, the Government had limited experience in how the policy and legislation behind the PAAT would affect the issues of foreign relations, economy and security, nor how it would affect the broader landscape of laws, civil liberties or human rights. The issue of sovereignty was ???not absolute??? (Howard, 2003).
Parliament was satisfied that legislation was the best and first way to tackle the terrorist threat, or at the least was part of an appropriate response. The next logical question then became one of proportionality between the proposed measures and the perceived threat. This required a critical assessment of the suspected or perceived threat, using means appropriate to Parliaments central role in our constitutional system. It required a careful balance between the possible responses to terrorism and its potential impact upon civil liberties. Parliament asked whether the gains to security from enacting new laws outweighed the costs to civil liberties (Hancock, 2002).
The major issue for Parliament was that it enacted strong laws largely in response to overseas events. Any possible threat to Australia is (still) largely unknown and the responses are unfamiliar. While overseas measures may offer some suggested approaches, they must be placed in context. The United Kingdom may have a range of counter terrorism laws, but it should be kept in mind that those laws have a very specific context: the enduring conflict in Northern Ireland during which threats to civilian targets became a sometimes daily experience. Likewise, the US enacted new counter terrorism measures, but has done so in the aftermath of 11 September 2001. Comparative approaches to counter terrorism are a relevant part of the debate in Australia, but so too is a measured appreciation of the specific threat to Australia posed by terrorism.
Arguably, Parliament had to approach terrorism as if there were no precedents. It assessed for itself whether the proposed measures were necessary, sufficient and proportionate in relation to the actual or potential terrorist threat in Australia. It clearly defined what distinguished terrorism from other offences or national security concerns, and the standards against which they are measured in terms of intended effects (laws to guarantee security) and incidental effects (to what extent will they infringe civil liberties and human rights). The way in which the Australian Government pursued its own counter terrorism objectives was guided by four key principles: Constitutionality, Proportionality, Comprehensiveness, and Sustainability.
On 27 September 2005, the PM chaired a special meeting of the COAG at which a long-term national counter terrorism agenda was agreed in response to the emerging threat environment, typified by the then terrorist attacks in London, July 2005. Out of this meeting a number of values and actions were agreed to, including but not limited to:
a National Emergency Protocol to ensure effective coordination and communication;
a national approach to enhance closed-circuit television for counter terrorism purposes;
strengthened laws at both the Commonwealth and state and territory levels, subject to appropriate safeguards; implementation of the 2005 Wheeler Report on Aviation Security and Policing in Australian Airports; national standards for the private security industry including training, competence, registration; a national strategy for promoting public understanding of the national counter terrorism arrangements; and a National Action Plan to build on the Principles agreed at the Prime Minister??™s meeting with the Australian Islamic Community Leaders on 23 August 2005.
In developing and implementing the PAAT, the Government relied upon a number of committees across various areas and portfolios, such as the Secretaries??™ Committee on National Security (NSC), the Australian Government Counter-Terrorism Policy Committee, the Australian Government Counter-Terrorism Committee, the Australian Health Protection Committee, and the Transport Working Group.
Primarily through COAG, the Government endeavoured to ensure a consistent and coordinated national approach to counter terrorism. The PAAT reflects that Australia operates under a federal system of divided constitutional powers across the two levels of government (Commonwealth and the states and territories). It supports an increased awareness of counter terrorism, means to identify and deny acts of terrorism, and methods to prevent, prepare, respond and recover from terrorism.
The creation of the PAAT was earnest in its policy design, and a lot of communication took place to ensure that key bodies (for instance, the military) were included in the consultation and planning. The Government on the whole was happy to discuss ways forward and thrash out most issues relating to counter-terrorism with one possible exception ??“ civil liberties. Apart from the frequent assurances that no freedoms would be sacrificed or lessened through the pursuit of apt counter-terrorism legislation, little in the way of proof or understanding has emerged. It can be said however that Australia is wise, in looking back, at taking a more considered approach than that taken by the US, who are only now beginning to see real impacts upon society and civil freedoms due to its hastily implemented laws and policies (not least of which includes the US foreign policy).
Any true assessment of how effective Australia??™s counter terrorism policy is at deterring or protecting Australia from terrorism is hard to account, given the lack of any direct terrorist attack on our shores. However, the policy was developed by effectively bringing together the many levels of government and addressed the common elements of security, infrastructure and the economy in a manner that allowed for public scrutiny and involvement.
Bergin, A. (2007). Confronting the terrorism threat: A national research institute for counter-terrorism. Australian Strategic Policy Institute.
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Anti-Terrorism Bill 2005 (Cwlth)
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Criminal Code Act 1995 (Cwlth)