As we’ve observed so often at Crikey, the War on Terror is an endless process. As part of that, the legislative war on basic rights, too, never ceases. The “balance” between freedom and security always ratchets further in the direction of the latter, while politicians and bureaucrats insist it’s still in careful alignment between the two.

So now we head for the fifth “tranche” of national security reforms in less than 15 months, although the specific detail remains unclear at this point as the government awaits the agreement of states and territories. But it will include lowering the age at which control orders can be applied, from 16 to 14; “enhanced search, telecommunications interception and surveillance device regimes” for those subject to control orders; new rules to prevent the subjects of control orders finding out about the information used against them and the creation of a new offence of “incitement of genocide”. However, the Commonwealth is holding out against a NSW push to extend preventive detention orders to up to 28 days on the basis that such measures — which amount to internment without trial — may be unconstitutional.

Each of the proposed measures raises serious questions — as they should, given the already fragile state of civil liberties in Australia. The lowering of the age at which control orders can be applied is arbitrary — if a radicalised 13-year-old is involved in an incident, do we lower the age to 12, and so on, down to primary school? Plainly a control order would not have prevented the murder of Curtis Cheng at Parramatta, given his killer was unknown to authorities. Control orders also have a well-known inhibiting effect on investigating and prosecuting terrorism. The enhanced search, interception and surveillance powers that would be handed to agencies, it must be remembered, may end up capturing a huge amount of data and content from third parties. Does an entire school or university’s IT system get placed under surveillance because of one student? Will their teachers be captured by surveillance?

New rules, apparently sought by police, that would prevent people subjected to control orders from finding out exactly what the basis is for the order — bearing in mind they can be applied to anyone, whether they have committed an offence or not — will further reduce the capacity of innocent people to successfully contest their targeting by authorities. And “incitement to genocide” is already covered by existing laws, albeit without the exotic appeal of using an emotive term like “genocide”, which in any event has been leached of meaning in recent decades by its application to non-lethal forms of persecution and harassment. As former Independent National Security Legislation Monitor Bret Walker SC noted, it looks a lot like an effort to Do Something rather than meaningful law.

The overall result: even more powers for our least accountable bureaucrats and even fewer rights for citizens, with minimal genuine assessment of whether existing laws are sufficient or even superfluous (Walker, for example, recommended that “control orders in their present form are not effective, not appropriate and not necessary” in 2012, but was ignored).

This process is best understood as a political-bureaucratic reaction to a perceived problem. Laws are not made more draconian, more Gothic offences are not created, when other forms of crime surge (for example, reported rates of sexual assault and domestic violence have risen significantly in recent years), but terrorism is framed differently, as so shockingly Other in its nature that dealing with it must require an endless ramping up of state power wholly out of proportion to the actual threat — despite a lack of any evidence that existing laws are insufficient to enable security agencies to deal with it. Faced with a complex problem of what we commonly refer to as “radicalisation” — however we define that process — the bureaucratic and political response is instinctively to seek greater state power, rather than work out what is driving radicalisation and why some Muslims youths are susceptible to it (our constant military interventions in Muslim countries being a key factor acknowledged by intelligence officials worldwide).

This will not be the last “tranche”, of course: the process is endless, like the War on Terror itself.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey