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Book Review
| Jenny Hocking, Terror Laws: ASIO, Counter-Terrorism and the Threat to Australian Democracy, University of New South Wales Press, Sydney, 2004. pp. xiii + 288. $34.95 paper.
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| Jenny Hocking's latest book, a companion piece to her Beyond Terrorism: the Development of the Australian Security State (1993), is, for the most part, a useful chronicle of the post-World War II evolution of the legal apparatus within which Australia's national security and counter-terrorist agencies operate. Commencing with the Australian Security Intelligence Organisation's establishment in early 1949 by a secret prime ministerial directive revised in 1950 and legislatively supplemented in 1956 and 1960 we have reached a point where there is a complex legislative base. The book's focus is the relentless expansion of disturbingly broad discretionary powers which the Commonwealth Parliament (more recently assisted by compliant State Parliaments) has conferred on our secret national security and counter-terrorist decision-makers in the past three decades. The invocation of the 'terrorist threat' in substitution for the Cold War 'communist threat' has conveniently supplied the justification for the enlargement of (largely unaccountable) executive authority to deal with the scourge of terrorism (real or imagined). As in the Cold War, politicians and bureaucrats have been prepared to promote hysteria in their quest for increased power. The reckless use of the label 'terrorist' is every bit as powerful as the indiscriminate spraying around of the label 'communist' was a generation and more ago. But that said, there can be no denying that we are at a stark point in the continuum of political terrorism which stretches back to the French Revolution. How Australia should now react to international terrorism is a function of the debate (such as it is) about the underlying causes of terrorism which is nowhere better exemplified by the profound differences of opinion about the causes of the worsening crisis in the Middle East and, more specifically, about what to do concerning the ongoing tragic consequences of the UN General Assembly resolutions (1947–48) concerning the disposition of Palestine. |
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Since the atrocities perpetrated in the United States on 11 September 2001 and in Bali on 12 October 2002, the Commonwealth Parliament has passed numerous anti-terrorist Bills, the preferred approach being one reflecting unquestioning support for the policies and legislative prescriptions of the United States and the United Kingdom in what has come to be labelled 'the war on terror'. The word 'war' supplies what is supposed to be a self-evident justification for draconian laws that would otherwise have no place in 'peacetime' Australia. Hocking argues convincingly that the existing criminal law sufficiently prohibits all the conduct which falls within the rubric 'terrorist acts' and that much of the recent legislation is vague in the extreme. Although she does not press her analysis in this regard very far, the vice of much of the recent legislative activity is that it assails the rule of law by substituting arbitrary discretionary decision-making for the application of fixed, ascertainable and understandable legal standards, by transferring adjudication from courts to administrative tribunals, by restricting the right of legal representation, and by otherwise intruding on the fundamental conception of procedural fairness, namely, the right to a fair hearing in an unbiased forum. Most working definitions of terrorism combine two elements. First, they identify a discrete type of violence, namely, that which is (a) politically motivated, (b) characteristically carried out with some degree of organisational control (including State-sponsored action), and (c) intended to kill and maim and otherwise terrify insecure and innocent civilian targets or which is otherwise aimed indiscriminately. Secondly, terrorist violence is also identified by its specific techniques most notably kidnapping and hostage-taking, hijacking of aircraft, terrestrial bombing including suicide-bombing (and more recently the use of rocketry), and assassinations. If we want to understand contemporary terrorism, this type of definition provides a clear and workable analytical framework. There will, of course, always be disagreements about the precise boundaries and application of any definition of terrorism. For example, was the targeted sabotage (not involving personal injury) carried out by the (then banned) African National Congress in South Africa in the early 1960s in order to bring about the end of apartheid a form of terrorism? Hocking goes beyond highlighting these definitional controversies. Her book attempts to establish that working definitions of terrorism of the kind alluded to above are fundamentally flawed because they are somehow ideologically constructed. True it is that there will also be disputes about whether, for example, the important qualifier 'politically motivated' is, in fact, properly applicable to what is otherwise a terrorist attack. But the author's argument that the concept of 'politically motivated violence' is inherently contingent and hopelessly intractable is quite unconvincing. This analytical defect, which detracts from the force of the argument about the anti-democratic trend of recent legislative changes, derives from the author's preference for a postmodern theoretical approach to terrorism. The postmodern theorising, evident for example in the author's inclination to elevate 'perceptions' of terrorism over its atrocious reality, is inherently abstract and bafflingly obscurantist. If ever there was a subject in which the grisly world of concrete reality (unhappily) supplied a very firm empirical basis for conventional induction and deduction as a means of description and conceptual analysis, it is surely that of the death and destruction inflicted by contemporary terrorism. |
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The author's emphasis on the supposed inherent 'theoretical' linguistic deficiencies of the working definition of terrorism contradicts the basic premise of her simultaneous (and thoroughly justified) attack made on the use of imprecise language in recent anti-terrorist legislation. The book has other blemishes. The Australian Constitution does not 'vest all legislative power in the states except in so far as it specifically provides otherwise' (p. 28). The early historical material (ch. 2) is at best patchy. The account of the origins of ASIO is so perfunctory that it entirely misses the genesis of that agency. H. V. Evatt was the third not the first (p. 207) President of the UN General Assembly. To describe Prime Minister Malan's apartheid regime in South Africa (1950) as 'liberal democratic' (p. 207) is unduly charitable. As other critics of recent Australian legislative reactions to terrorism have forcefully done, Hocking reminds us that history is repeating itself in what is really a process of creeping lawlessness. So, not content with maximising power to detain suspected terrorists indefinitely, some proponents of a more vigorous approach to the war on terror are now seriously contending that the exigencies are such that liberal democracies must legitimise the use of torture. |
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| Victorian Bar |
LAURENCE W. MAHER | |
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