Irfan Yusuf: Let courts rule on terror law

What the Melbourne Age newspaper described as Australia's "biggest counter-terror operation" in that city and Sydney on Tuesday have been used by Australian federal and state governments and their critics to prove a few points.

In the case of the governments, these points may be summarised as follows. First, that the move to rush through a significant amendment to the anti-terror laws (involving the replacement of one word) last week was worthwhile.

Second, that the Commonwealth and States are working together to fight terrorism. Third, that more work needs to be done to fight terror.

The Howard Government is hoping this message will translate into a smoother passage for its radical package of anti-terror laws.

These laws have come under attack from state and territory governments across Australia, prominent lawyers, judges and even a former conservative Prime Minister.

The raids were carefully choreographed and filmed by commercial TV crews in the early hours of the morning. At 5am, I received a phone call from a commercial TV station inviting me to participate in an interview concerning the raids.

It is sad when sensitive operations affecting national security are transformed into a national media circus. It may vindicate certain politically risky positions taken by politicians. But it does little to make ordinary people on either side of the Tasman feel more secure.

In days leading up to the raids, some media outlets supportive of Mr Howard were providing "exclusive" reports of a terror cell said to be operating in Sydney and Melbourne.

Yet the raids may raise more questions than they answer. There is some doubt as to exactly what stage the alleged attacks had reached before the arrests took place.

This is significant as it reflects on a recent legislative change pushed through Parliament last week. That change enabled police to press terror-related charges against suspects even if a specific attack was not known. The wording of the Act was changed from "the terrorist" to "a terrorist" attack.

According to the NSW Police Minister Carl Scully, the raids had prevented "a catastrophic act of terrorism". These comments suggest that not only were pro-Government media aware of an imminent attack but also NSW police.

It could be inferred that police could still have swooped on the terror suspects even without the change in the wording of existing law. What, then, was the point of recalling Parliament just to change one word?

Then there is the contentious issue of allegedly extra "shoot to kill" powers being offered to police by proposed terror laws. During the raids, police shot one suspect. Police clearly already have the power to use lethal force.

The Howard Government's proposal to introduce widened sedition laws has come under attack from the Labor Opposition, the States, judges, lawyers and civil rights activists.

They say such laws may effectively legislate against dissent and criticism of government policy. One wonders how widened sedition laws could have made the recent raids any more effective.

Other criticisms of the terror laws have also been made by leaders of Australia's Muslim communities. Australian Governments cannot afford to ignore these criticisms.

All proscribed terrorist organisations on Australia's statute books are Muslim groups. Effectively, this means the terror spotlight is on anyone deemed Muslim.

According to the President of the Police Federation of Australia, any new anti-terror laws can only be effectively enforced with ethnic profiling. Governments and police deny this, but feelings on the ground run counter to these assurances.

Lawyer and executive member of the Islamic Council of Victoria, Waleed Aly, is concerned about rising hate-crimes against Muslims. "There has been an increase in hate crimes, particularly in Melbourne's northern suburbs. Crimes range from people being spat on, to assaults, ... headscarves being ripped off. It's pretty horrible stuff," Mr Aly said.

In Sydney, Islamic Council of NSW spokesman Ali Roude expressed confidence in the ability of police to combat terror under existing laws. He said: "If they believe that there are solid grounds to charge people, then we will back their judgment in this matter.

"This is how our justice system should work. Not by preventive detention or control orders without charge or tribunals where people cannot face their accusers, but in validly convened courts operating under known and open law."

Hopefully, these raids will have successfully foiled a terrorist plot. But more importantly, for the first time, such raids have resulted in charges being laid. Now Australian courts will be able to test and enforce a raft of existing anti-terror laws.

One high-profile incident four years ago saw a Sydney couple mistakenly raided. Their claim for damages against the Australian Security Intelligence Organisation was settled in a Sydney court last week.

Had the matter gone to hearing, it would have proven extremely embarrassing for law enforcement and intelligence officials.

More than anything, Australians need to see terrorists being punished and wrongly accused persons vindicated before an open court. No amount of toughened laws will work unless existing laws are tested in the courts. Liberal democracy is ultimately about the Rule of Law, not rule by politically motivated parliamentarians.

* Irfan Yusuf is a Sydney lawyer and occasional lecturer in the School of Politics at Macquarie University.