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Bernardi highlights a double standard on terrorism

Charles Richardson writes:

9/11, AL-QAEDA, CORY BERNADI, GEERT WILDERS, MUSLIMS, SEPTEMBER 11 2001 TERRORIST ATTACKS, TONY ABBOTT

Now, where have we heard this before -- a party has to change tack on a racially charged issue for fear of losing votes "in winnable Western Sydney seats"? But it's OK; it's not the bogans of Lindsay making a noise this time but the Muslims, warning Tony Abbott that he needs to condemn Cory Bernardi for his support of Dutch extremist leader Geert Wilders.

For those who missed it, it was revealed this week that Bernardi, who is Abbott's parliamentary secretary, had lunch with Wilders in the Netherlands in May and "extended an invitation to assist him with his schedule or arranging appropriate meetings" when he visited Australia.

Wilders heads the Party for Freedom, the third-largest party in the Netherlands. But he is no ordinary centre-right politician: his fanatical hatred of Islam -- which he describes as a Nazi-like ideology rather than a religion -- has made him a pariah in much of Europe. But he is idolised by many on the far right, and clearly shares common ground with the likes of Bernardi.

Now the discovery that Bernardi is way out on the political fringe and that Abbott's Liberal Party provides a safe haven for right-wing extremists is hardly news. But it provides an interesting study in the different ways we treat extremist rhetoric depending on which side it's coming from.

Demonisation of Muslims has become a dominant theme in far-right discourse over the past 10 years. People such as Wilders, Melanie Phillips, Daniel Pipes and many others, including our own Janet Albrechtsen and Andrew Bolt, form a loose network who regularly quote one another's work and propagate fear of Islam, urging extreme measures to counter the perceived threat.

In doing so, they have created almost a mirror image of the radical Islamic discourse that rails against the poison of the West and provides moral support for the terrorists of al-Qaeda and similar groups.

The difference of course is that the latter has been subject to a raft of measures to combat the "incitement" or "encouragement" of terrorism, and has been pushed to the very margins of public debate. The extreme right, however, remains on centre stage, with high ratings, billions in advertiser dollars and the patronage of civil and political leaders.

Yet it's only a month and a half since 69 people were killed by terrorist Anders Breivik, inspired by the same racial, religious and political demons shared by Wilders and his like. We can no longer claim that right-wing terrorism is an imaginary threat.

It's true that al-Qaeda is an actual terrorist organisation, with no real anti-Islamic counterpart. But in the months after 9/11, the fight against al-Qaeda morphed into a campaign against the enablers of Islamic terrorism in general, targeting many whose crimes were in words, not deeds.

Yet on the other side, Alan Jones, for example, can be officially found to have presented programs "likely to encourage violence or brutality" and "to vilify people of Middle-Eastern background on the basis of ethnicity" without anyone seriously suggesting that he should be prosecuted under the sedition laws, despite the fact they had been recently crafted to penalise just such "encouragement".

My point is not that these extremists should be silenced by the law; on the contrary, I have repeatedly defended the free-speech rights even of racists, bigots and charlatans. Nor will regular readers, I hope, accuse me of being sympathetic to Islamic fundamentalism. I think all religious fundamentalism is a malign influence that we should be on guard against.

But the double standard behind our anti-terrorism laws needs to be brought out into the open and examined. And if we take from 9/11 the message that one religion is uniquely harmful and dangerous, then we have learnt the wrong lesson.

Australia's anti-terrorism laws restrict democratic freedoms and would never have been allowed to pass in the US.

Australia responded to September 11, 2001, with an extraordinary burst of law-making. In the ensuing decade, the Federal Parliament enacted 54 pieces of anti-terrorism legislation; 48 of these were passed under the Howard government, an average of one new anti-terrorism law every seven weeks.

The numbers are striking. A study by Canadian Professor Kent Roach found that ''Australia has exceeded the United Kingdom, the United States, and Canada in the sheer number of new anti-terrorism laws that it has enacted since September 11, 2001. Australia's hyper-legislation strained the ability of the parliamentary opposition and civil society to keep up, let alone provide effective opposition to, the relentless legislative output.''

The numbers tell only part of the story. Of greater importance is the reach of the laws in introducing restrictions on speech through sedition offences and censorship; detention and questioning for up to a week by the Australian Security Intelligence Organisation of Australian citizens not suspected of any crime; the banning of organisations by government; control orders that can enable house arrest for up to a year; detention without charge or trial for up to 14 days; covert surveillance of non-suspects; and warrantless searches of private property by police.

As these examples demonstrate, exceptional powers and sanctions thought to lie outside the rules of a liberal democracy, except during wartime, have become part of Australian law. Moreover, they remain on the statute book, and have taken on a character of permanence.

Thirty-seven men have been charged under the laws, with 25 convicted and often sentenced to long periods of imprisonment. These terrorism trials demonstrate the reach of the laws. New federal offences include possessing ''things'' connected with terrorist acts and doing ''any act'' in preparation for, or planning, a terrorist act. Such crimes are punishable with jail terms of up to life.

The offences demonstrate how Australia's new laws are primarily directed at the prevention of terrorism. In sentencing five Sydney men in February 2010 for ''conspiracy to do an act connected with preparation for a terrorist act'', Justice Whealy said: ''The legislation is designed to bite early, long before the preparatory acts mature into circumstances of deadly or dangerous consequence for the community.''

In that case the five men were convicted on evidence that they had purchased ammunition, chemicals and laboratory equipment and possessed extremist propaganda and military instructional material. However, they did not have a plan and had not picked a target, and did not necessarily intend to kill innocent civilians. All were sentenced to jail terms of more than 20 years.

Several lessons can be drawn from these laws. First, Australia needed new laws to prevent terrorism. The absence of national anti-terrorism laws before September 11, 2001, was not surprising. Apart from isolated incidents such as the 1978 bombing at the Sydney Hilton Hotel, Australia had little direct experience of terrorism.

However, the rarity of such attacks did not justify the lack of law. Anti-terrorism laws should be in place before a possible attack. The worst possible time for enacting anti-terrorism laws can be in the aftermath of a devastating loss of life, when fear and grief can compromise any chance of rational debate.

It has been argued that laws were not needed because terrorism could be dealt with by existing criminal law. This is not sustainable. Laws were required to deal with specific issues. For example, Australia needed to outlaw the financing of terrorism overseas, and police and intelligence agencies needed new powers to prevent attacks at home.

Australia also needed to enact new anti-terrorism laws to meet its obligations as a member of the international community. For example, Resolution 1373 of the United Nations Security Council, adopted on September 28, 2001, determined that states shall ''take the necessary steps to prevent the commission of terrorist acts''. While Australia had criminal laws to prosecute individuals for acts of terrorism after the event, the nation lacked laws directed at the prevention of terrorism.

Australia's anti-terrorism laws have an important moral dimension. In an era punctuated by attacks starting with New York and Washington and followed by Bali, Madrid, London, Mumbai, Jakarta and elsewhere, it was appropriate that Australia outlawed such forms of political violence. Enacting a crime of terrorism signalled that Australia rejects the use of violence for political, religious or ideological means.

Second, Australia's experience shows how inferior laws result from poor processes of enactment and review. The nation needed new anti-terrorism laws, but too many of the laws we received reflect problems of process and political judgment.

Australia's first set of anti-terrorism laws set a bad precedent. They were driven through the House of Representatives on March 13, 2002, the day after they were introduced. They demonstrated a theme that applied until the fall of the Howard government: laws were too often passed with inordinate haste and insufficient scrutiny and debate.

Once it gained a majority in the Senate after the 2004 election, the Howard government rode roughshod over parliamentary process. The London bombings of July 2005 saw the government announce a range of contentious measures including control orders and sedition. The bill, introduced into Parliament on November 3, 2005, was accompanied by a statement by the then attorney-general, Philip Ruddock, that ''the government would like all elements of the anti-terrorism legislation package to become law before Christmas''.

This left little time for Parliament to do its work, let alone for members of the community to consider the changes. After a quick-fire Senate committee inquiry, the legislation passed on December 7, in plenty of time for Christmas.

One consequence of this hasty enactment was immediate recognition that at least one aspect might be flawed. The package included new sedition offences with seven-year jail terms. The offences applied to mere words, and contained inadequate protection of speech such as scientific analysis and comedy.

The sedition offences were referred to the Australian Law Reform Commission, which reported in July 2006 that there were extensive problems, and recommended change. However, the Howard government never implemented these recommendations. Even a change of government in 2007 did not quickly bring reforms. It took until 2010, five years after the sedition offences were enacted, for the changes to be legislated.

Problems in the making of anti-terrorism laws can, to an extent, be remedied by efficient and effective processes of review. However, Australia's record in this regard is patchy and inconsistent. Even where reviews have been conducted, the level of political commitment to adopting their recommendations has been low. Findings of high-level, expert panels have been ignored or only implemented years later. The common thread of Australia's anti-terrorism laws is that they have been enacted in undue haste and reviewed and repaired some years down the track, or often not at all.

Anti-terrorism laws demand ongoing vigilance. Without this, powers that can be justified only in that extraordinary setting may become accepted as normal and applied elsewhere. An example is the adaption of the control order regime to bikie groups in several Australian states. The South Australian Premier, Mike Rann, justified this by saying: ''We're allowing similar legislation to that applying to terrorists, because [bikie groups] are terrorists within our community.''

Third, Australia's lack of human rights safeguards can allow laws that too readily undermine democratic freedoms. A central challenge in making anti-terrorism laws is how best to ensure the security of the nation while also respecting the liberty of its people. In democratic nations, the answer is usually grounded in a human rights act or bill of rights.

In contrast, Australia is the only democratic nation without such a check and balance. This leaves key questions about the rights and liberties of the community outside of legal protection and instead subject to the possibility of political compromise and opportunism. These have had a major impact on Australia's anti-terrorism laws.

Australia has gained anti-terrorism laws that undermine democratic freedoms to a greater extent than elsewhere. For example, it would be unthinkable, if not constitutionally impossible, in nations such as the US and Canada to restrict freedom of speech in the manner of Australia's 2005 sedition laws. It also would not be possible to confer a power upon a secret intelligence agency that could be used to detain and question non-suspect citizens.

Fourth, law is only part of the answer because these laws come with costs. In particular, the laws can give rise to a sense of grievance in sections of the community where people believe they have been unfairly singled out. This can be magnified by the exceptional nature of the laws and what can be a heavy-handed government and media reaction to their use.

This also reflects the fact that aspects of Australia's anti-terrorism laws have been almost exclusively applied to the Muslim community. For example, despite terrorism being a phenomenon that applies across a large range of political ideologies and religions, 18 of the 19 organisations banned by the government are associated with Islamic goals or ideology.

This is the dynamic that terrorists rely upon. Terrorism as a political strategy requires nations to over-react in their attempts to prevent attacks. Terrorists cannot achieve their objectives through military might, and rely upon the fear their actions provoke.

Terrorism promotes a cycle whereby an attack feeds a reaction that contributes to the bringing about of a further attack. Anti-terrorism laws can cause resentment and radicalisation within a community.

Even where anti-terrorism laws are applied fairly and drafted appropriately, the exceptional nature of the laws means there will always be a risk of a community counter-reaction. The laws can become part of the problem, and not the solution.

Australia's federal governments were late to realise that anti-terrorism laws need to be complemented by community-based strategies. It is only recently that programs have been developed to combat domestic extremism. These and other initiatives are required to bolster social cohesion in the face of destabilising anti-terrorism laws.

George Williams is the Anthony Mason professor of law at the University of NSW and is completing a five-year international study of anti-terrorism laws.

Anti-Terrorism Laws

As Opinion polls reveal that voters' support for Labor's policies is at an all-time low, largely because of the Gillard government's decision to set a price on carbon, anti-carbon tax websites have sprouted like mushrooms.

But what appears to be a proliferation of anti-government activist sites is, in fact, a political campaign orchestrated by a Liberal Party senator, Cory Bernardi, and conservative organisations with which he has links.

Using similar tactics to the Tea Party in the US, the South Australian has built a network of purportedly grassroots websites promoting limited government, lower taxes, free enterprise and so-called ''traditional'' values. They also campaign against the government and its policies, particularly its carbon tax.

Senator Bernardi is chairman of the Conservative Leadership Foundation, which has set up at least six websites, including the Conservative Action Network under the name CANdo.org.au, and stopgillardscarbontax.com. The Sun-Herald understands the actual number of sites could reach 12.

Access to the websites is free but donations are solicited and, in most cases, it is only when paying that subscribers discover who the backer is.

The websites do not disclose the South Australian senator's role, and most do not say that donations go to either the foundation or its panel of advisers, Menzies House.

Senator Bernardi, a joint founder of Menzies House, said he received none of the donated money, which was used solely to fund the foundation's activities, principally promoting and supporting conservative - mostly young - people who were interested in leadership.

Tea Party supporters call it a ''grassroots'' uprising: critics call it ''astro-turfing'' because many US groups are funded by oil and tobacco billionaires but publicly attribute their success to grassroots donations.

Menzies House declares its support for the stopgillardscarbontax.com website, which calls itself a ''central portal and information resource for Australians opposing Julia Gillard's destructive carbon tax''.

Yet despite its patriotic claims, the site's registration is held in the US by a company that hides its domain ownership, which is not possible on .au websites.

A donation to stopgillardscarbontax.com, via PayPal, was deposited into an account that appears to be held by Menzies House's editor, Tim Andrews. Asked about this and other matters, Senator Bernardi said he was not involved in the day-to-day running of the foundation, and he referred inquiries to the foundation's national director, Geoffrey Greene.

Mr Greene admitted the stopgillardscarbontax.com website was ''one of ours'' and that Menzies House was ''part of us''. He said he had been involved in ''four or five'' new websites for the Conservative Action Network since April, when he took up his voluntary position.

Other websites had been created before he joined the foundation, and some were accessible on Facebook. The CANdo network had 45 groups listed on its website and Mr Greene said it had thousands of members. He later clarified his statement, saying the foundation solely operated the foundation's and CANdo.org.au websites, and two Facebook sites.

Menzies House's website domain registration shows that it is owned by the Conservative Leadership Foundation.

Mr Greene denied the foundation's set-up was similar to the Tea Party movement and likened it instead to conservative version of the Australian left-wing campaign movement GetUp!

Senator spins tangled web on tax