The threat from terrorism
George Williams
It is a pleasure to be here for a number of reasons. It is an honour to have been introduced by Bob Debus. The failure to replenish Labor’s State ranks with people of his calibre is, unfortunately, one of the reasons why the party has now reached such a low ebb. The same I think can be said in regard to his more recent retirement as a minister from the Gillard government. I am also pleased to be here because HV Evatt is one of my political and legal heroes.
I came to know his life and work well when in the early 1990s I spent a year researching the attempt to ban communism in the late 1940s and early 1950s. I was then in my final year at university, and my thinking and values were profoundly influenced by Evatt’s actions and words.His achievements were founded upon his intellect and convictions. As to the former, even today he remains one of the most notable graduates are to emerge from the University of Sydney.The breadth of his achievements have not been surpassed by any other Australian. He served the community as a:
barrister;
prolific author both on matters of constitutional law and Australian history;
State Parliamentarian (ALP member for Balmain);
High Court judge (youngest ever at 36);
federal Parliamentarian for 18 years (beginning with Australia’s last federal hung Parliament in 1940);
Attorney-General and Minister for External Affairs in the Curtin and Chifley governments;
after WWII as a statesman and influential drafter in the formation of the United Nations as a body dedicated to collective peace security and human rights
inaugural president of the Atomic Energy Commission;
President UN General Assembly (during which time the Universal Declaration of Human Rights was adopted);
leader of the federal ALP and Opposition Leader; and as
Chief Justice of NSW.
Evatt’s final post is by itself an exemplary achievement. After all, since 1824 there have been only 16 Chief Justices of NSW. However, such had been his prior achievements, that in his case the appointment came as an anti-climax.
What stands out more than anything else in this line of glittering achievements is that Evatt was driven by a set of strong convictions. He was convinced, obsessive even, about the need to maintain and promote the rule of law and human rights. He was in particular a champion of civil liberties and the rights of economically and socially disadvantaged people.This is not to say that Evatt was always consistent or free of error in this regard. There are certainly blemishes on his record and examples of where he compromised his beliefs. He was, after all, not just a lawyer, but a leading politician. Nonetheless, Evatt stood up for his convictions when it most counted, often to his own great personal cost.In doing so, he did Australia a great service.
Tonight I aim to ask what Evatt actions and beliefs suggest about how we should approach a contemporary problem of great importance: that is, how Australia should respond when it comes to the threat we face from terrorism.
Anti-terror laws Until September 11, Australia had no national laws dealing with specifically terrorism. Political violence was dealt with by the ordinary criminal law. In an era punctuated by terrorist attacks starting with New York and Washington and followed by those in Bali, Madrid, London, Mumbai and elsewhere, new laws were needed. They were required to signal that as a society we reject such violence and to ensure that our police and other agencies have the powers they need to protect the community.Laws were also needed to protect our most basic human rights. Terrorism infringes our rights to life and personal security and our ability to live free of fear.
A legal response was also needed to fulfill our international obligations as a member of the United Nations. For example, Resolution 1373 of the United Nations Security Council, made on 28 September 2001, determines that States shall ‘Take the necessary steps to prevent the commission of terrorist acts’. Governments across Australia deserve credit for recognising this need, and Parliaments for passing laws that, among other things, make terrorism a crime.
Unfortunately, the federal parliament overreacted and passed too many bad laws. This was provoked by a combination of political opportunism and poor judgment. As the drivers of law-making after a terrorist attack, fear, grief and the scent of a political victory are the worst possible motivators.
The ‘war on terror’ has left a dreadful legal legacy. In the years after September 11 to the defeat of the Howard government the federal parliament enacted 44 new anti-terror laws, or one new law every seven weeks. No other western nation comes close to this record. Nor, with the exception of the US where the problem is being slowly being wound back by Congress and the Supreme Court, has any democratic nation transferred so much power to government at the expense of parliament and the courts.While we needed anti-terror laws, we have gone from no law to too much bad law:
Definition and new crimes based on ‘advancing a political, religious or ideological cause’
‘Terrorism’ is itself so contested, as are the political uses to which it is put, such as in the 2006 conflict in Israel and Lebanon. What some see as terrorism, others see as self-defence or a struggle for liberation. Or, to put it another way, ‘one person’s terrorist is another person’s freedom-fighter’. After all, Nobel Peace Prize winner Nelson Mandela was called a terrorist by many during his fight against apartheid in South Africa, including by British Prime Minister Margaret Thatcher.
Laws go beyond ordinary criminal law as a crime not just for committing an act, but preparing for it (conspiracy to prepare ... need not be a specific act.
Reverse the onus of proof for critical aspects of some offences.
Banning of terrorist organisation on the say-so of the government (and imprisonment of members, including informal, members, and for association and advocacy).
Control orders for up to a year, including for house arrest.
Detention without trial for up to 14 days.
Attorney-General can issue certificate to close court from public view and restrict evidence a defendant can see, even if needed to mount their defence.
Censorship of book or film if ‘praises the doing of a terrorist act in circumstances where there is a risk that such a praise might have the effect of leading a person (regardless of his or her age or any mental impairment … to engage in a terrorist act’.
Detention of non-suspects by ASIO for intelligence gathering, with up to 5 years jail if do not co-operate and ban on publishing information about the detention for 2 years (inc. for torture).
New powers for the secret interception of the emails, SMS’s etc of innocent people without their knowledge.
Sedition laws for what say and not just do – fixed.
Many of these new laws have made in great haste. For example, the laws passed after the London bombings in 2005 were enacted so quickly that they came into force before two inquiries into the effectiveness of the existing laws could report. As a result, laws were made without sufficient justification. Australia gained new laws, including laws dealing with preventative detention and control orders, yet the threat level to Australia as assessed by the government did not shift from “medium.” Nor was new information made available to support such a major change in our law.
This can lead to laws that not only fail to deal with terrorism, but can actually cause further problems. As history shows, the more repressive or draconian the law, the more likely it is that some people will take extreme action in response.By our own actions we may isolate and ostracise members of our community who, instead of assisting with intelligence-gathering, may then become susceptible targets for terrorist recruitment. Through our attempts to feel safe in the immediate term, we may actually make ourselves more vulnerable to terrorist attack.
There is no question that many of these laws have a profound, negative effect upon human rights and the rule of law. The question is now, what is being done about them? It appears that the answer is, very little.
The Rudd and Gillard governments took modest steps last year to improve this situation. A new law remedied a well-recognised problem with sedition, among a host of other changes. However, it avoided the most controversial aspects of our anti-terror laws, such as the ASIO interrogation power.A law was also passed in March 2010 to establish an independent monitor of Australia’s anti-terror laws. Inexplicably, that office has not been filled. This does not bode well for the government’s willingness to subject Australia’s anti-terror laws to robust review. A commitment had also been made to hold a major COAG review of many of the most contentious aspects of the laws. The review was be to be conducted late last year. Unfortunately, it has not even commenced, and the whole idea seems now to been forgotten.
In the meantime, these extraordinary laws are becoming an accepted, rather than exceptional, aspect of our legal system. The unthinkable has become a model for lawmaking elsewhere, with for example a control order regime extended to bikies. This shows the dangers of allowing such laws to stand unreviewed.As someone who believes in human rights and the need to maintain the rule of law, I believe that the fight must go on to bring about major changes to these laws. We must not be complacent about their long-term impact. In arguing this, I am fortified by how Dr Evatt approached an even more difficult situation some 60 years before.
The Communist menace A parallel can be drawn between the events today and those of the late 1940s and 1950s involving communism.Robert Menzies sought to rid Australia of communism through the Communist Party Dissolution Act 1950 and a subsequent referendum. The hysteria of the early 1950s resembled a religious fervour in its intensity. In a speech on 23 May 1950, Ben Chifley summed up the feelings of the time: This measure [the Dissolution Act] will to some degree be administered in an atmosphere of national hysteria, worked up by politicians and other persons, and by the press ... There is great danger that the hysteria and fear complex that has been aroused may result in grave injustices being done to individuals. The multitude can make grave mistakes. It was the multitude, by its vote, that sent Christ to be crucified.
The Dissolution Act reflected this. Section 3 defined ‘communist’ as ‘a person who supports or advocates the objectives, policies, teachings, principles or practices of communism, as expounded by Marx and Lenin.’ The imprecision of the language meant that the potential scope was enormous. A ‘communist’ might have been a socialist, like many members of the Labor Party and many unionists, who supported or advocated one or more aspects of Marx’s teachings. Read literally, a person who supported any of the objectives of Marx or Lenin was a ‘communist’.
The definition of ‘communist’ caused members of the Labor Party, especially in its left wing, considerable concern. Menzies had on prior occasions sought to link the socialist agenda of the Labor Party with the basic tenets of communism. For example, in commenting upon Labor’s attempt to nationalise Australian banking in 1947, Menzies stated: further consideration of the facts reveal that this socialisation measure is no example of unpremeditated illegitimacy. It is, on the contrary, the normal child of long-considered socialist policy which, in Australia, for the last 25 years, has been deeply influenced by communist and revolutionary ideas.
On another occasion Menzies argued ‘Communism has the same basic aims as Socialism. Only the means are different. The resultant state would be identical under either system.’ If Menzies was correct, it is difficult to envisage that many members of the Labor Party could have escaped the ambit of Dissolution Act.
Section 4 of the Dissolution Act declared the Australian Communist Party (ACP), an organisation involved in contesting elections at all levels of Australian politics, to be an unlawful association, provided for its dissolution and enabled the appointment of a receiver to manage its property. Other organisations could also be outlawed when the government decided that they supported or advocated communism or were affiliated with the ACP. This again could have extended to a number of left-wing bodies, including potentially even the ACTU.
Under section 9, the Governor General could also declare a person to be a communist. Once declared, a person could not hold office in the Commonwealth public service or in industries declared by the Governor General to be vital to the security and defence of Australia. Should a person wish to contest a declaration, he or she could do so, but ‘the burden shall be upon him to prove that he is not a person to whom this section applies’. The ACP, ten unions and several communist union officials took little time to challenge the Dissolution Act in the High Court. Evatt, then the Deputy Leader of the Opposition, astonished all concerned by announcing that he would represent the communist-led Waterside Workers’ Federation and its communist official, James Healy, in the High Court challenge.
The Victorian Branch of the ALP passed a motion condemning Evatt. However, in Parliament Chifley vigorously supported Evatt as Chifley viewed Evatt’s determination to fight the Act as being consistent with Evatt’s long championship of civil liberties. Harold Holt, for the Government, summed up what could be the only result of Evatt’s decision: ‘rightly or wrongly the people of Australia will read into the appearance of the right honourable gentleman a sympathy and support for the cause which he seeks to defend.’
Of course, we are still seeing echoes of this today in the Australian media. Ferguson, the New South Wales President of the Labor Party, said that Evatt’s acceptance of the brief was ‘ethically correct, professionally sound, and politically very, very foolish.’ On March 9 1951 the High Court, with Chief Justice Latham dissenting, upheld Evatt’s arguments, finding the Act invalid on the basis that it was beyond the power of the federal parliament to suppress an organisation under its defence power on its own opinion in a time of peace. Justice Dixon stated: History and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power.
In the wake of the High Court’s decision, Menzies declared that ‘This is not the end of the fight against communism, it is merely the beginning.’ A week after the High Court rebuff, Menzies called an election. Communism was the issue of the day and was the stick with which Menzies proceeded to beat his Labor opponents.The Liberal Party’s slogan in Tasmania was ‘Menzies or Moscow’. Evatt was opposed in his seat by World War II hero Nancy Wake, who campaigned on the slogan ‘I am the defender of freedom; Dr Evatt is the defender of communism’. Evatt retained his seat by only 243 votes. Menzies won the 1951 poll.
Menzies then sought the power to deal with communism by way of referendum under the Constitution. As put to the people of Australia on 22 September 1951, it sought to graft a section onto the Constitution that would have allowed the Commonwealth to legislate with respect to communists and communism and to enact the Dissolution Act. If passed, it would have enabled Menzies to legislate with the utmost freedom to suppress communism. The alteration thus posed an even greater threat to political freedom than the Dissolution Act. Menzies argued for a ‘yes’ vote on the ground that communism had to be countered and that, as the High Court had showed that the Commonwealth did not possess the constitutional power to suppress communism, the Constitution was inadequate and had to be altered. Initially, the referendum proposal attracted massive electoral support.
In Parliament, Evatt, now Leader of the Opposition, described the attempt to amend the Constitution as ‘one of the most dangerous measures that has ever been submitted to the legislature of an English-speaking people.’ Holt, in a now familiar role, responded by saying: The House has just been listening to the most notable defender of Communism in Australia. The leader of the Opposition has spoken at considerable length and, at times, with some degree of fervour in a role in which this country is becoming increasingly accustomed to see him in both the Parliament and the law courts.
Evatt invested his considerable energy into the fight against the referendum. Despite a lack of support from many sections of the Labor Party, he travelled thousands of kilometres to address numerous meetings. His advocacy for the ‘no’ vote was based less on logic than upon a heartfelt awareness that the referendum proposal contravened fundamental democratic freedoms. Evatt argued that the referendum proposal would grant the Commonwealth despotic powers that could be used to deal indiscriminately with the enemies of the government. In four weeks of campaigning, he turned the tide of support for a ‘yes’ vote towards a ‘no’ vote. Evatt tapped the traditional reticence of the Australian people to support constitutional change. Even vehement anti-communists like Jack Lang, Archbishop Daniel Mannix and Laurie Short came to back Evatt’s position.
The referendum failed to gain the support of a majority of electors by the narrowest margin in Australian history, 2,317,927 ‘yes’ votes to 2,370,009 ‘no’ votes. Menzies was bitter about the loss, accusing the proponents of a ‘no’ vote of misleading the public with a ‘wicked and unscrupulous’ campaign.Evatt won a crucial victory for himself, the Labor Party and Australia by leading the defeat of the referendum. It also came at a significant personal and political cost. Nevertheless, commenting upon the result he said: I regard the result as more important than half a dozen general elections. The consequences of a mistaken vote in an election verdict can be retrieved. But an error of judgement in this constitutional alteration would tend to destroy the whole democratic fabric of justice and liberty.
Asked then what Evatt might do when it comes to Australia’s anti-terror laws, I think his courageous actions of more than half a century ago demonstrate the answer. Evatt would have opposed laws that undermine human rights and the rule of law. He would have recognised that such laws must be changed lest they undermine the very democratic freedoms that they are meant to protect.
George Williams is the Anthony Mason Professor of Law and Foundation Director of the Gilbert + Tobin Centre of Public Law at the Faculty of Law, at the University of New South Wales. This is the text of his 2011 Annual Evatt Lecture presented at the H. V. Evatt Memorial Dinner at the Carrington Hotel in Katoomba on 30 April 2011.
Suggested citation Williams, George, 'What would Evatt do?', Evatt Journal, Vol. 10, No. 1, December 2011<https://evatt.org.au/what-would-evatt-do>
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