Australia's New Anti-Terrorism Legislation

There’s a new Australian anti-terrorism law in the works. It includes such things as:

  • 14-day secret detention without arrest by security services
  • Shoot-to-kill “on suspicion” powers for police
  • Imprisonment and fines for revealing an individual has been the subject of an investigation

News reports are pretty bad.

This draft legislation was not supposed to be public yet, but the Chief Minister of the ACT revealed it on his website last week in defiance of a federal government request not to do so.

Posted on October 27, 2005 at 1:10 PM71 Comments


Davi Ottenheimer October 27, 2005 2:35 PM

Here’s an interesting comment in The Age story you linked:

“Nobel prize-winning author J. M. Coetzee, a South African now resident in Australia, said at the weekend: ‘I used to think that the people who created (South Africa’s) laws that effectively suspended the rule of law were moral barbarians. Now I know they were just pioneers ahead of their time.'”

I hate to bring it up again, but it just seems too fitting to avoid. Carl Schmidtt is credited with saying “there exists no norm that is applicable to chaos”, or in other words universal legal rights can be discarded if a soverign leader declares a “war” on his/her enemies.

“Torture in Iraq and the Rule of Law in America” by Sanford Levinson, (Daedalus, Summer 2004) discusses this in some depth and clearly shows that Gonzales’ famous 2002 memo looks as though it could have been written by Schmidtt (or even Hans Frank) himself:

“In order to respect the President’s inherent constitutional authority to manage a military campaign (federal laws against torture) must be construed as inapplicable to interrogations undertaken pursuant to his Commander in Chief Authority.”

The Whiskey Bar blog has a convenient summary of related news:

Daniel Cid October 27, 2005 3:15 PM

Interesting… last week I was at the holocaust museum (in DC) and some of this new “security measures” remind me of Hitler and his “people”…
They had the “shoot to kill”, the police could arrest
for the sake of the “security” without any reason…

Am I the only one who thinks like that?


Guillaume October 27, 2005 3:51 PM

To me, laws like this are the terror. It’s not the movie plots threats.

A couple years back, I was getting out a store only to find a 3-4 of police officers, gun in hand, entering a bank across the street. It may be just ignorance, but I realize that day how uneasy I feel around guns. Shoot to kill leads to nothing good. This thread sums it up :

ps : I read the proposed bill and I didn’t spot the “shoot to kill” part in all the legal wording. Is it what they call “stopping” ?

Jonathan October 27, 2005 3:53 PM

Interesting. It seems almost an axiom that whenever elected represenatives don’t want their people to know what they’re doing, every single time they’re doing something they shouldn’t be doing.

Rob Mayfield October 27, 2005 4:52 PM

It’s probably relevant to point out that the federal government here in Oz, with the help of their coalition partners, have an outright majority in both the upper and lower houses. If they decide that it’s necessary to push through these laws and turn every copper across the country into Bruce Willis theres not much stopping them – including our relatively weak constitution (although there are questions being raised about some aspects of the legislation with regard to the constitution after the states sought their own legal opinion).

On top of that – the belief is that they will try to push this legislation through both houses of parliament in a single day. There was even talk of this being done on ‘Melbourne Cup’ day, when most people are focussed on long lunches and office sweeps. Of course the governments favourite retort is that the people ‘gave them a mandate’ by voting them in so convincingly; of course the reality is that the opposition were considered a more frightening option at the time.

Lets hope Barnaby Joyce – one of the few politicians in Oz who still has a grip on his own sanity most of the time – doesnt fold on this one.

Anonymously October 27, 2005 6:18 PM

@ Daniel Cid

“Interesting – last week I was at the Holocaust Museum in DC and some of these new “security measures” remind me of Hitler and his “people” – they had the power to “shoot to kill” and the police would arrest for the sake of the “security” without any reason…”

What makes you think there is a comparison to the “will to power” created by Hitler and Australia’s new Anti-Terrorism legislation? Do you think Australia engage in a massive slaughter because of this bill? Do you know how Hitler likely came into power? I don’t see it.

Ari Heikkinen October 27, 2005 6:31 PM

As far as I remember any comments from the Australian PM about terrorism on news, I think he doesn’t understand terrorism and how to respond to it too well (I got the impression he thinks more control, more surveillance and more police powers is good response to it).

Anonymously October 27, 2005 6:36 PM

@ Bruce

I also read the bill and did not find any of the following words: Shoot, kill, suspicion, or lethal…

Is the text you are referencing – “use of any force that is necessary and reasonable” or is it somewhere else?

Dr Stephen Dann October 27, 2005 6:46 PM


‘Do you think Australia engage in a massive slaughter because of this bill?”

The problem with these laws is that they are putting dangerous powers into place, and the justification is that “Well, we’re good people, we won’t use them for bad purposes”. The fact that the law allows for a person to be detained without trial for a week is bad. Add the component that says that if the detainee speaks of the incident, they face a jail term, and if a journalist or other person speaks of that detainee being held without trail for a week, they also face a five year jail term.

Now, forget that this is Australian draft legislation. Pick a country…say… Iraq under the rule of Saddam Hussein. Bring in a series of laws against “sedition” which allows the regime security forces to remove a person from the street, without a warrant, on “due suspicion of terrorist intention” or “suspicion of sedition”, then jail any person who make public comment about the incident.

There’s a good gap between John Howard and Saddam Hussein. The problem is that we can’t always guarantee that the next few prime ministers will maintain that gap. All it will take with laws with dangerous applications and unchecked mechanisms of disappearing people with limited judicial review and NO public comment is one person of immoral intent.

After that, if you can’t verbally protest the disappearance of a person without facing jail or your own likely disappearance, what are the odds of peaceful public comment being seen as the best mechanism of resistance to the state? If one of my friends is disappeared, I’m at risk of doing a five year jail term for public speech.

5 years for public statements that may make no impact? Why not buy the 25-life package with a more impressive display of dissent?

The largest problem with the laws as they stand is that the political process in Australia is being bastardised in the name of fighting “terror”. So with the new terror laws, we can be disappeared from the streets, jailed for public speech about the disappearances, shot if resisting will being dissappeared without warrant and all of these laws were supposed to be passed without the standard Senate committee reviews, without public comment, and hell, you have to wonder – did they plan on telling the public about the fine print and detail, or just abducting “suspicious” people off the streets?

All of this to make us safe from terror.

Dr Stephen Dann October 27, 2005 7:02 PM

@ Bruce

Chief Minister Jon Stanhope said the ACT Government had been informed by email today that the latest draft of the Anti-Terrorism Bill was about to be forwarded from the Commonwealth Office of Parliamentary Counsel, but that the office had been instructed not to provide the ACT with a copy.

Basically, for this law to have full effect, all states and territories must pass supporting legislation to enable the various provisions of the Federal act that are making use of State and Territory laws and powers. At last count, the ACT Chief Minister was expressly prohibited from being given a copy of the revised laws because he leaked the first draft.

It would be laughable, were it not a serious matter. In order to punish the miscreants, they’re not allowed to play with the Federal Government’s toys anymore – despite the Federal Government expecting the ACT to pass the requisite legislation to assist the national enactment of the anti-law.

There’s a difference between the driver saying “Trust me I know where we’re going” when you’re in the passenger seat and then there’s being blindfolded and stuffed into the boot.

Davi Ottenheimer October 27, 2005 7:44 PM

@ Anonymously

“Do you know how Hitler likely came into power? I don’t see it.”

Yes, in fact I do and I’ve posted about it here before. Hitler is probably one of the most overused references in the world, but it’s probably due in no small part to the amount of source material still available.

I guess I should mention that my first post on this log entry was meant to anticipate the thread we’re now discussing. I pointed specifically to the “will to power” similarities that have been widely discussed since at least the infamous Gonzales’ memo.

Generous amounts of literature suggest that Carl Schmitt’s influence at the time (he is still referred to as the Nazis’ ‘Crown Jurist’) built a framework for Hitler’s ascent through pseudolegal victories. Hitler’s personal lawyer Hans Frank also very deftly built on Schmitt’s work and crafted a legal justification of a war of aggression (

This isn’t to say that every slide into dictatorship needs to be compared with Nazi Germany, but the memoirs, autobiographies, biographies, etc. make it a good study. The sad fact is many people miss the forest for the trees. They think that just because they don’t grow a little moustache or wear funny pants, therefore it’s ok to say human rights are a nuisance to their totalitarian aspirations.

It may be of historic interest to consider that after the war Hans Frank was found guilty of war crimes and crimes against humanity:

Roy Owens October 27, 2005 7:53 PM

Get used to it.

The game is thousands of years old. (North Korea and South Korea have played it together since the 50s. The Soviet Union and NATO played it together — they called it the Cold War.) Use the vandals at the gates to repeatedly scare your people into increasingly surrender their rights, and money. Of course you need to keep inviting the vandals to show up at the gates to menace your people, helping things along as necessary.

The really smart play is to put the vandals on the payroll.

Then everybody’s happy.

Moz October 27, 2005 7:53 PM

Australia is also in the midst of a series of problems with their immigration department. DIMIA also have the power to hold people without charge, apply arbitrary punishment and deport people, all with no notification to anyone connected to their target.

Unfortunately they’ve demonstrated a willingness to abuse that power, and to try desperately to avoid admitting mistakes or being subject to oversight. They are known to have deported at least one Australian citizen, and to have kept at least five in concentration camps for long periods. Currently there’s an inquiry into more than 200 cases of suspected wrongful imprisonment, the longest of which is over five years. These are all people with a legal right to be in Australia, BTW, violation of the rights of illegals has not been considered (illegals quite possibly don’t have rights, as Australia has no Bill therof).

Given this, what hope that another govt body with similar powers dealing with similarly scaepgoated people won’t also run amok?
(etc, etc)

Anonymously October 27, 2005 8:49 PM

@ Davi Ottenheimer
@ Dr Stephen Dann

Thanks for the replies and I hope you are wrong – but feel that the bill will pass.

Ralph October 27, 2005 10:10 PM

Not much to do with Security is it. One wonders if it being done on purpose or through incompetence.

Rob Mayfield October 27, 2005 10:36 PM

Theres a number of other documents on the Chief Ministers page that make an interesting read, specifically relating to constitutional and human rights advice:'s%20New

Lasry-Eastman Advice
Constitutional advice from Stephen Gagelar, SC
Human Rights Commissioner’s advice on anti-terror laws
Letter from Public Interest Advocacy Centre
DPP advice on anti-terror laws
Human Rights Implications for the Anti-Terrorism Bill 2005

I wonder how long it will take people to realise that the real terror is brought upon us by those who we’ve elected …

Daniel Schick October 28, 2005 2:47 AM

Do you think Australia engage in a massive slaughter because of this bill? Do you know how Hitler likely came into power? I don’t see it.

One more small comment about that:
Hitler didn’t drop out of the sky – changes were made to the legislation which made it possible for him to gain full control. These changes took place step by step over a number years after 1933. Note: his actions were not against the law! (the law was bent to make them legal). So, I think it is very rightful to be concerned about any change in legislation that grants an unwarranted amount of power to any government body.

Mike October 28, 2005 4:21 AM

Yet more knee-jerk reactionary comments comparing this to Hitler.

@ Daniel Cid, you’re, unfortunatly, not the only one who thinks like this. But you fail to understand quite a lot of history … well and quite a lot of modern society.

There is security for a reason, you just don’t agree with it is all.

Tank October 28, 2005 5:26 AM

@ Rob Mayfield
“I wonder how long it will take people to realise that the real terror is brought upon us by those who we’ve elected …”

You’re an Australian and you’re terrorfied of John Howard ? What are you, new ?

Prometheus October 28, 2005 7:51 AM

@ Dr Dann

Perhaps the more interesting part of Stanhope’s involvement is that he is NOT needed in order to get the legislation through. Stanhope is the Chief Minister of the Australian Capital Territory. It is a Territory (i.e. not a state) and as such the federal government can pass whatever laws they wish and they wil apply in the ACT because there is no division of power between those governments, the ACT legislature is a delegated body of the federal government.

Also for the law to have full effect it may not be necessary to have the states pass supporting legislation anyway. The federal government has always had a broad power to implement its international obligations (At least since the Franklin Dam) and the ability to pass laws with respect to defence has clear aplications here. The federal government would prefer not to go it alone because that invites a constitutional challenge they’d rather not deal with. That doesn’t mean they’re out of the race if the states pull out…

Anonymous October 28, 2005 7:59 AM

@ Rob Mayfield

“I wonder how long it will take people to realise that the real terror is brought upon us by those who we’ve elected …”

[sarcasm]YEAH! FIGHT THE POWER![/sarcasm]

When was the last time the Government used terror tactics on you. Personally I’ve never seen anyone from the department of beheadings in ages.

Where else would you prefer to live?

relativism October 28, 2005 8:06 AM

The proposed new laws very likely have more to do with the ruling political party (the very misleadingly named Liberal Party, who are actually right wing, not liberal, go figure) avoiding political damage from any possible future terrorist acts than with actually preventing said terrorist acts. The first Bali bomb in 2002 resulted in a great deal of (probably unfair) criticism of the government on the grounds that they should have known more and prevented it. The government wants to avoid getting similarly blamed for any possible future events by pointing to the “tough action” they took in passing “tough” laws. They like that sort of language in political circles and the press here in Australia – makes it sound like they are actually doing something. It fools a lot of people.

The prospect of a few innocent people being accidentally shot because of shoot-to-kill policies, or a few more being locked up for no reason other than a cop or security person didn’t like them is not the government’s problem politically because few people will complain about those sorts of incidents. Just make sure you don’t look the wrong way at a policeman from now on!

A little perspective is probably a good idea here. Shoot to kill already exists in practice – there are occasional questionable shootings by police, sometimes the police have to face a court, sometimes it just gets explained away as operational necessity. Given the situations police sometimes have to face, this is not at all surprising.

Also the latest drafts of the legislation have softened the preventive detention and control order provisions. It is still pretty draconian, but they are trying to hose down public criticism. They have also delayed introducing it to parliament (called “tabling” it) to deflect criticism that it is being rushed in. They will still rush it in, they just want to mute the criticism of rushing it in.

Ed T. October 28, 2005 8:08 AM

If we are looking for historical references, don’t just look at Nazi Germany. There are plenty of examples in the Western Hemisphere (and I am not speaking of the USA post-9/11). The history of several South American countries has been peppered with “wars against terror” and the like where people tended to disappear. Argentine, Chile, even relatively democratic nations such as Venezuela (pre-Chavez) used the end of “the need to maintain security” as justification for the means of imprisonment without trial (or even formal charges), summary execution (some would call it “murder”), the use of torture to extract confessions/information (here I am not talking about sleep-deprivation or the use of strong/threatening language, rather the inflicting of massive amounts of physical pain using various instruments, and such UN-pleasantries as gang-rape (sometimes against a family member — wife or child, while the one being ‘questioned’ was made to sit and watch.)

And, I can guarantee that all this was done with the best of intentions — to “maintain security and guarantee liberty and freedom and stop those nasty terrorists”.

Of course, having lived in one of those countries while this type of thing was going on, and wondering if my friends’ absence from school meant I wouldn’t be seeing them again (at least not alive), may have clouded my judgement with bias — or maybe it just removed the clouds and let me see things a lot more clearly.


Quercus October 28, 2005 9:05 AM

Re: “Yet more knee-jerk reactionary comments comparing this to Hitler.”

Maybe a valid point. The comparison is overused to the point of not making a point anymore.

How about this: Would anybody want duly-elected U.S. President Richard Nixon to have been able to legally establish surveillence in secret on anyone he wanted? Or arrest people and hold them in secret without trial?

Of course we can trust the current administration — I’m sure nobody is unpatriotic enough to deny that — but what happens when a Nixon gets power?

Concerned October 28, 2005 9:50 AM

Somewhere on the PNAC web site (Project for a New American Century), there is a document which indicated they needed another Pearl Harbor to achieve their objectives. That came with 9/11.

More recently, in attempts to strip the sunset clause from the Patriot Act and/or attempts to pass Patriot Act II provisions, a reference was published, supposedly from a governement agent (CIA, FBI, or whatever), that another 9/11 was needed because the changes still didn’t give them enough power.

In the past, despotic regimes uses the power of force to get what they wanted. After the fall of the USSR, I found a document (reference unknown) which indicated that future control should be acquired by power of law, through legislative action, in order to make the same gains that power of force used to achieve. Does anyone doubt that this is happening world wide?

MathFox October 28, 2005 10:35 AM

I have allways been unhappy with specialised “anti-terrorism” laws. The combination with dubious practices by the “intelligence” agencies makes everything even messier (link to article in Dutch):

“Suspected AIVD informer provided handgranades”
Someone who is suspected to work as an informer for the AIVD (Dutch Secret Service) has provided the handgranade that wounded two police officers during the arrest of two terrorism suspects.

Eternally Vigilant October 28, 2005 10:36 AM


if you are interested in the topics discussed here, you would definitely like the classic book “Road to Serfdom.” You can read it online for free. History Today describes it as “the single most influential political book published in Britain during this (i.e. last) century”. It was written between 1940 and 1944 by an Austrian economist, F. A. Hayek, who won the Nobel Prize in 1974 and personally observed the rise of nazism. Chapters include “why the worst get on top,” “the end of truth” and “the totalitarians in our midst.” Anything sound familiar there? The url is…
…and there’s an intro by Nobel Prize winner Milton Friedman here…

Davi Ottenheimer October 28, 2005 10:46 AM

Yet more knee-jerk reactionary comments comparing this to Hitler.

The comparison is overused to the point of not making a point anymore.

As I stated above, the reason Nazi Germany is referenced so often is because it is so well documented and subsequently researched.

If you want to point to another period where constitutional and human rights were systematically eroded through pseudolegal methods, leading to a single-party dictatorial system, go right ahead. There are many examples in history, but I challenge you to find one as richly recorded.

For example, if you study Schmidtt’s work you might realize that he was part of a school of thought regarding how a Republic should regain strength/legitimacy by a constant and totalitarian struggle against its “enemies”.

This is not only significant because of the comparison, it also appears to be a natural struggle of leadership that needs to be addressed and understood clearly in order to avert the predictable disaster that has followed in the past.

On the other hand, you could avoid the bad times and argue something about the good times — like the rights enshrined in the Magna Carta. Anyone who fiddles with those does so clearly does not deserve to retain those rights, right? But then you end up seeking examples of why it’s bad…and you end up right back in the stacks reading about all the bad times.

Anyway, at the end of the day the true knee-jerk mentality is the one lacking thought or reason, the one based solely on sensory perception — “doesn’t smell like Hitler, doesn’t look like Hitler, doesn’t act like Hitler…must not be Hitler”.

How’s the view from down there in the sand? I hear it’s very calm and peaceful.

Eric K. October 28, 2005 10:52 AM

Quercus said:
Of course we can trust the current administration — I’m sure nobody is unpatriotic enough to deny that…

Actually, that statement itself strikes me as unpatriotic.

Are you aware that you’re implying that we don’t have the freedom to distrust our government? Our founding fathers would have disagreed with that.

I’m patriotic because I believe in our country and not because of believing those who currently hold power. Might doesn’t make right.

And, until the current administration changes enough of the Constitution to deny me that right, I’m perfectly entitled to distrust them. Publicly, if I so choose.

David October 28, 2005 10:54 AM

Saddam Hussein is being tried for crimes committed using just such logic. After all, he was at war. He had rebellion among his people. He had assassination attempts. So his madness, in light of this current thinking, was simply ahead of his time and wasn’t madness at all, just a sensible reaction to violence around him. Boo!

Mike October 28, 2005 11:10 AM

@ Davi Ottenheimer:

As opposed to: ‘doesn’t smell like Hitler, doesn’t look like Hitler, doesn’t act like Hitler…must be Hitler’

“How’s the view from down there in the sand? I hear it’s very calm and peaceful.”

Sorry, I didn’t catch all that, I have my head in the sand from your bombastic psuedo-intellectual spiel.

Davi Ottenheimer October 28, 2005 11:25 AM

@ Quercus

“Would anybody want duly-elected U.S. President Richard Nixon to have been able to legally establish surveillence in secret on anyone he wanted”

Good point. You might say that the reason it has been legally established this time is because of the backlash/lessons from Nixon’s mistakes.

First of all a different party controlled the Congress when Nixon was President. Second, although complicated politically, the fact is Nixon played a heavy hand with the CIA and it backfired on him. He started by trying to force the CIA director to hush intelligence agents who were involved in Watergate. When that plan failed he fired the CIA director and replaced him with a hawkish economist, Schlesinger. The subsequent turmoil (massive layoffs, backstabbing, etc.) under Schlesinger created an even bigger rift between President and intelligence community so Nixon promptly promoted Schlesinger to be Secretary of Defense and brought in Colby…

Not long after Nixon’s forced resignation, Seymour Hersh wrote an article called “Huge CIA Operation Reported in U.S. Against Antiwar Forces??? published in the New York Times (December 22, 1974, p. 1). The reaction to the story (revealing that the CIA had been directed to spy on “radicals” and read all US correspondance in/out of the USSR) eventually led to the 1975-76 investigations by the Rockefeller Commission and the Church and Pike committees.

Any chance of that kind of inquiry happening now?

Davi Ottenheimer October 28, 2005 11:27 AM

“Sorry, I didn’t catch all that, I have my head in the sand from your bombastic psuedo-intellectual spiel.”

Ah, it’s my fault, eh? Amazing what effect a blog can have on someone.

Davi Ottenheimer October 28, 2005 11:52 AM

@ Mike

Whoops! I apologize about about that last comment. Someone just wrote to me to say I misunderstood that you were suggesting an alternative. My bad. I thought you were subtlely changing the phrase without explanation.

Yes, I agree. Either way, “must be” or “must not be”, a reaction without the benefit of informed analysis is likely to be knee-jerk.

Again that’s why the post WWI transformation of Germany is often referred to and why it’s still useful — there is so much useful information available to review.

piglet October 28, 2005 12:24 PM

Davi, you know: don’t feed the trolls.
By the way, the correct spelling is Carl Schmitt. The parallel you point out is absolutely valid. The US administration is arguing, with respect to Guantanamo etc., that the President’s power to do what he feels necessary in the interest of national security must not be restricted by any constitution, domestic or international law, courts or human rights. I don’t believe that any other (nominally) democratic government has ever made such a claim.

Mike October 28, 2005 12:46 PM

“Ah, it’s my fault, eh? Amazing what effect a blog can have on someone.”

A classic internet argument. I was merely suggesting that you try and talk down to people less, in my direct northern England manner, whether you think you are or not.

Anonymous October 28, 2005 4:49 PM

Bruce, how about not going along with the mainstream press on ridiculous phrases like “shoot-to-kill”? That phrase is absolutely ridiculous. Do they normall “shoot-to-wound”? Absolutely not!

A more accurate phrase would be “shoot-on-suspision”. This sounds just as dumb/dangerous a policy as the other phrase and is WAY more accurate.

Dr Stephen Dann October 28, 2005 7:18 PM

@ Anonymous
Can’t speak authoritively on this, but there’s a difference between the current “Shoot to kill” provisions where the assailant is armed and hostile, versus “Shoot to kill during an incident with a person of suspicion”. By being a person of suspicion, they’ve not actually committed a crime. That’s the key difference – if they’ve committed any criminal act in the lead up, then they can be arrested as a suspect in that crime, and it’s covered under current police powers. If they’re under suspicion, but haven’t committed a crime yet, then the new law was designed to allow the use of lethal force in the attempts to subdue a person of potential threat.

I don’t mind being nicked for what I’ve done, I do object to being nicked to what other people think I might be capable of doing.

@ Prometheus
My consitutional law is rusty, so I’ll concede the implementation point to your superior fu.

On the political image point, given the plan was raised by COAG, supported by COAG, booting the ACT off the discussion list would indicate the less than unanimous support. With two states raising constitutional law concerns (QLD, WA), and Victoria and NSW premiers going “Our laws on shooting people are just fine thanks”, the unified front on the War on Error is crumbling.

Given they’ve got a shortlist of likely suspects to tackle once the law is enacted, they’ve got a short list of lawyers likely to show up with constitutional law challenges

ACT@coag was kick banned from #terror_law by @OzFedGov

Anonymous October 28, 2005 7:34 PM

I saw a quote recently, unfortunately I can’t remember where, that referred to the current U.S. situation as “Stalanism Lite: all the control, but half the penalties”, and pointed out that with less extreme penalties there is less backlash from the masses. Therefore, less penalties actually lets the government extend more controls, more easily than the earlier totalitarianisms. Everything will therefore already be in place for the rise of a new Hitler or Stalin or Mao, without their needing to spend time and energy getting laws changed.

Davi Ottenheimer October 29, 2005 2:04 AM

@ pigledt

Thanks. Oops, I mean ‘piglet’.

@ Anon

That sounds suspiciously like a beer ad: “Stalin Lite — same great taste, less rights”.

The Register pointed out an interesting paper (with the cheesy title of “Emote Control”) that was just published in the Chicago-Kent Law Review. It seems to suggest a “behavioral economics” view of legal reform during the war on terrorism:

“The idea that people do not always make decisions with an eye to consequences, though heretical for economists, is commonplace in psychology.”

It’s a fast read and it really gets interesting/relevant to this log entry around page 1067:

“The war against terrorism also illustrates the effect of affect or emote control on governmental policy and law. The tragic, vivid, and compelling events of September 11 set in motion an emotional reaction by both governmental officials and the population that overwhelmed any rational or objective assessment of either the risks terrorists present or the policy choices to confront terrorism.”

They refer to “probability neglect”, a term attributed to Cass Sunstein, to explain why people choose to ignore the real risks involved and/or consequences of their actions (page 1069):

“When strong emotions are involved, Sunstein shows, people often pay little attention to the objective probability of the risks they face and react similarly to a risk that has a 1% chance of occurring and a risk that has a .001% chance of eventuating.”

From there they eventually reach a point where they declare “executive decisions…appear to reflect an emotional hostility rather than a deliberative judgment as to the best long-term strategy for dealing with terrorism”.

Nicely said.

Incidentally, Sunstein apparently published a book recently called the “Laws of Fear”, which might also be a good read on this subject:

I found his article on “probability neglect” here:

OzJuggler October 29, 2005 5:53 AM

” If this keeps going on, the only people with any freedom will be the terrorists. ”

Very well said, jammit.

Terrorists are a subset of criminals. Criminals, almost by definition, have been and always will be more free than law-abiding citizens. Disregarding laws frees you from them, threats of justice not withstanding. For every law you follow there is a freedom you willingly sacrifice.

The proposed legistlation is controversial because we are being asked to sacrifice too much security in the name of Security. We are expected to exchange the rare, brazen and short-lived danger from terrorism for perpetual and insidious danger from our own nation State. I know gambling is big business in Australia but even a poker-machine addict should recognise this proposal as a ripoff.

The most threatening aspect of the proposal could be struck down if only the politicians asked themselves the question: “When has the legal separation of powers into legistlative, judicial and enforcement ever been a problem?”
Or rather, when was it a good idea to combine judge, jury and executioner into every cop?

Rob Mayfield October 30, 2005 1:45 AM

@tank:”You’re an Australian and you’re terrorfied of John Howard ? What are you, new ?”

Which is clearly not what I wrote.

@Anonymous:”Where else would you prefer to live?”

Which is part of the issue, 5, 10 or more years ago that question was a no-brainer.

Tank October 30, 2005 2:05 AM

@Rob Mayfield at October 30, 2005 01:45 AM
“Which is clearly not what I wrote.”

Feel free to explain the way in which Australian leaders are terrorising you which doesn’t involve John Howard or terror then.

@ Davi Ottenheimer at October 28, 2005 10:46 AM
Anyway, at the end of the day the true knee-jerk mentality is the one lacking thought or reason, the one based solely on sensory perception — “doesn’t smell like Hitler, doesn’t look like Hitler, doesn’t act like Hitler…must not be Hitler”.
How’s the view from down there in the sand? I hear it’s very calm and peaceful.”

If you mean Australia, yes it is very calm and peaceful down here.
But don’t let that stop you referring to the topic at hand with no perspective though. Rather than sand we Aussies refer to point of view as having your head up your arse.

WishIWasAnonymous October 30, 2005 3:33 AM

As an Australian citizen currently in China, I am vaguely considering pulling a publicity stunt and publicly renouncing my citizenship with a concise statement and some easily-broadcastable, downloadable video snippets explaining my choice and condemning the terror laws, if they go through.

Aussies, do you think such a stunt would make media? I would of course email and fax all the outlets I could find. I’m not so sure the government here would like it. Governments in general don’t seem to like vocal populations.

So, I’m currently decided against it. But, to save one more part of the world from idiotic legislation, it just might be worth it. And I don’t lose that much.

The big uncertainty would be the Chinese government reaction.

Tank October 30, 2005 12:55 PM

@ Davi Ottenheimer at October 28, 2005 10:46 AM

Oh, and by the way, I’m a Troll who’s not from Australia, so no need to respond.

Roger October 30, 2005 7:37 PM

I have been reading the draft version of the bill which was published on the ACT Chief Minister’s website. It is somewhat heavy going, not because the language is difficult nor because it is a large document(a hundred odd pages), but because most sections refer to amendments to other legislation, so you have to find and pull up the other legislation to understand their effect.

So it would be helpful if persons making claims about various deleterious effects of this bill could refer to which section they claim to have that effect — particularly as some of the claims being made do not seem to be true. For example, I can’t find anything that could fairly be described as “Shoot-to-kill “on suspicion” powers for police”. I may be wrong. It may be that some amendment has some subtle side-effect, unknown to me, that amounts to such a policy. But it certainly isn’t in the bill itself. In fact, so far as I can see the only section that refers to lethal force at all is section 105.23 (2) which, during the course of an arrest or attempted escape, prohibits use of any even potentially lethal or even injurious force except to protect human life, and then only if other options have been exhausted. This is not a “shoot to kill” policy, it is simply extending to “preventative detention” the same powers that exist for normal arrests.

(The phrase “on suspicion” presumably refers to the fact that the police must have reasonable grounds to apply for the authority/warrant for the arrest, but the suspect does not need to have been convicted before being arrested! — again, the same as any other arrest warrant.)

Tank October 30, 2005 9:03 PM

@ WishIWasAnonymous
“As an Australian citizen currently in China, I am vaguely considering pulling a publicity stunt and publicly renouncing my citizenship”

In protest of the repressive police state policies of Australia ? In favour of China ?
Damn. If you’re gonna do that at least say you are defecting to Communism. A lot of people will laugh at you but it will be a lot less than for the first reason.

ps. Rather than impersonating people who live in Australia who tell you nobody here is terrorfied of anything to discredit those trying to inject a little sanity and perspective into this discussion, why not just discredit me by pointing to an Australian who is terrorfied ?

Shouldn’t be too hard to find right ? After all it’s not like the most recent direct threat on one of our cities got the most TV coverage on comedy shows. Oh yeah, that’s right, it did.

WishIWasAnonymous October 31, 2005 12:32 AM


Please don’t make so many assumptions.

In fact, your first two questions are exactly ‘the point’ of such a stunt. So in your case, I would have been successful.

Using loaded words like communism doesn’t detract from that.

Perhaps your view of this country is a little naieve – spend some time on the ground here, you will be surprised. The Australian state (or rather, the US-like state towards which our legislation is rapidly moving) does not differ too much from the ‘managed capitalist’ state towards which China is so rapidly moving.

Reading recent reports of illegal police home invasions in Sydney, it would seem that for the vast majority of China’s massive muslim minority, it’s already superior.

Anti-Tank October 31, 2005 12:33 AM

@ Tank

You mean as in “I’m sitting here inside my armored vehicle full of weapons” not afraid? Or as in “I don’t care if they take away our rights against unlawful search, seizure and detention” not afraid?

Black Kettle October 31, 2005 12:46 AM

@ WishIWasAnonymous

Well said. One has to wonder when Tank easily dismisses comments from anyone outside Australia, and then himself turns to blurting out an opinion about a foreign country (China). I hear the Pot calling…

@ Tank

You can be as unafraid as you’d like, but can you contribute anything else to the conversation? I assure you everyone is ok with the fact that you think you are fearless, but please realize your comments do not exactly come accross as a form of sanity or a perspective you think it might.

Tank October 31, 2005 4:57 AM

@ WishIWasAnonymous at October 31, 2005 12:32 AM
“Reading recent reports of illegal police home invasions in Sydney, it would seem that for the vast majority of China’s massive muslim minority, it’s already superior.”

Well that’s one religion covered. Hows the Falun Gong demographic sitting currently ?
Still demonised and persecuted by the Chinese security services because of little more than popularity ?

After all 1930s Germany could well have a better record on persecution of Muslims than Australia. Hardly worth looking into though right ?

ps. The irony here is that should we continue comparing China and Australia in terms of being a police state and official policies of religious persecution we could actually get this site banned in China.

Tank October 31, 2005 5:21 AM

@ Black Kettle at October 31, 2005 12:46 AM
“You can be as unafraid as you’d like, but can you contribute anything else to the conversation?”

Strange complaint from someone not involved in the conversation.

Was it your opinion though that repeated rants about how the population was being terrorised and persecuted by these laws should stand on the basis that somebody guessed this was the case if it actually isn’t ?

The whole “speculation in security evaluation” must have been in an earlier Schneier book I haven’t read.

After all if we want to constrain debate to the theoretical effect of these laws then I’m sure we can find a quote from some politician stating the only people who will get shot or detained are terrorists. Game over. Sleep tight.

“I assure you everyone is ok with the fact that you think you are fearless, but please realize your comments do not exactly come accross as a form of sanity or a perspective you think it might.”

I haven’t referred to myself once here or anyone being fearless. As I said earlier either you have visited Australia and have some perspective or you haven’t and you don’t. When Australians are universally recognised as “laid back” it doesn’t refer to the fetal position. It’s not a national state of fearlessness it’s that we generally don’t give a shit.

When an Australian featured in a recent al Qaeda video threatening Australian cities in an Australian accent the most common comment I heard was “how Aussie was that guy”. I had doubts only because he wasn’t holding a stubby.

We don’t have a media and social culture based on fear like some other Western nations. And until you’re at a BBQ where you’re told not to worry about the snake you just spotted because “he won’t drink much” you really won’t get it.

Black Kettle October 31, 2005 12:06 PM

@ Tank

I think Davi’s point was that emotive control can be used by politicians to advance an agenda. Fear is one emotion, exuberant pride is another.

Here you provide insight into the fact that some say the root cause of a fear-dominated life is really pride — an exuberant feeling that says sufficient wisdom or resources exist to deal with all dangers, when in fact they do not.

As I said before, dismissing everyone elses’ comments about Australia and then rattling on with your own opinion about every other “Western nation” or China…you just appear to be a proud braggart. Stay proud and stick to your “don’t give a shit” story. A wee bit silly to argue that you really don’t care enough to argue, no?

I’m sure you are a riot at the BBQ with your snake jokes and constant irony, but here you just come across as a brute who wants to beat your chest and shut everyone else up because they’re not from your neighborhood. Rah rah Tank.

Tank November 1, 2005 2:43 AM

Me shutting people up really only would be an issue if they had something to say in the first place though. Once again this disqualifies you.

Personally I think the China guy got off lightly.
He was either remarkably stupid or misinformed. Honestly what sort of education would you need to avoid to be frightened of one raid by police in one country and determine this was a scarier police state than one which has detained into forced labour camps 100000 people on the grounds of their religion. And rather than blood sacrifices that religion is really big on Tai Chi. Seriously.

Likewise if you read a quote where somebody mentions Hitler’s name 3 times in equating him to the leader of a country which introduced laws which detain somebody for 2 weeks and thought he had a valid point about someone else fearmongering, you aren’t the sharpest tool in the shed either.

In the meantime there is 70% support in Australia for tougher anti-terror laws after the details leaked here have received blanket coverage in the press complete with obligatory references to Menendez and when most Australians aren’t aware of al Qaeda training having taken place on Australian soil or existing plans for implementation of that training.

The opposition party who runs on a strict platform of being opposed to everything the government does has floated it’s own proposed law which criminalises incitement to violence in much broader terms than the government’s. Both of which are narrower in scope than existing laws in some states.

So unless you’ve got some punctuation issues you want addressed now might be a good time for you to either contribute to the discussion with some perspective like you called for earlier or quit your bitching.

Tank November 1, 2005 3:04 AM

Are you done bitching yet ?
After all if I am shutting people up it really only would be an issue for people who had something to say. This rules you out.

As for the China guy he got off very lightly. Suggesting that a police raid in one country supposedly on religious ground makes him feel glad he is in China where 100000 people have been detained into forced labour camps for belonging to a religion. I couldn’t bribe someone to say something that stupid.

And you want to impress upon me the subtle point about fearmongering the guy who used Hitler’s name 3 times in one sentence was making when he made a comparison to the government of a country he has no familiarity with.

Yeah wouldn’t it be a loss if those people stopped posting.

Meanwhile there is 70% support in Australia for tougher anti-terrorism laws after the release of these details and blanket coverage in the media. This is without US-style terror warnings or most people even being aware that terrorist groups have undertaken arms training on Australian soil in relation to long term plans for militant activity in this country.

The opposition party in Australia has announced alternative laws for consideration which are far broader in criminalising incitement to violence than the government’s and which are in turn narrower than the existing laws of some states.

So that’s the state of play in Australia. Like I said either you have some perspective on the topic or you don’t.

Chui Tey November 3, 2005 6:09 PM

Let’s not talk about Hitler, but of Robert Mugabe who locked up opposition leaders, charging them with terrorism. Or count the number of opposition members who were locked up in Malaysia under a piece of anti-terrorism legislation.

Think it’s not going to happen in Australia because it’s not cricket? I didn’t think Australians are capable of the AWB scandal but there they go.

Black Kettle November 4, 2005 12:43 PM

@ Chui

Well said.

@ Tank

Or should I call you Mr. Pot? The irony of your statements just keep getting better and better. Who is bitching here? Who posts baseless conjecture about other people and countries? That’s a mighty big hole you keep digging for yourself.

Tank November 6, 2005 12:20 AM

I’ve posted baseless conjecture about China being a police state which persecutes peaceful religions ?

FFS get an education.

FYI the largest estimate of Jews disappearing in Europe in the 30s and 40s is less than the amount of people who have disappeared in Chinese forced labour camps.

So these accusations that Chinese authorities persecute religions are as baseless as those about Nazi Germany.
And you are in denial about them.

Anti-tank November 6, 2005 4:27 PM

@ Tank

Let’s see. First you suggested people outside Australia shouldn’t comment on its laws, then you said someone who is Australian and living outside Australia shouldn’t comment on Australian laws, and now you say you want the rights to comment on China and Nazi Germany. Hmmmm. Can’t have it both ways without a double-standard.

I think Black Kettle nailed it for you, and you should just admit that being Australian doesn’t mean you get to be an exception. You must still deal with international inquiry and opinion about rights in your country, just like China, or Germany, or the US or any other “nation”.

Tank November 7, 2005 1:59 AM

Let’s see. First you suggested people outside Australia shouldn’t comment on its laws, then you said someone who is Australian and living outside Australia shouldn’t comment on Australian laws, and now you say you want the rights to comment on China and Nazi Germany. Hmmmm. Can’t have it both ways without a double-standard.

I haven’t said anything about people commenting on laws. Frankly it would be refreshing if they did given it would cut down on the amount of references to Nazis.

I’ve taken issue with people commenting on the imagined effect of these laws as supposedly creating a climate of fear in Australia and the persecution of religious groups.

If neither of these things have happened these people are still just inventing shit to be worried about whether I point that out or not.
If you don’t like me pointing out these people don’t “have an Australian perspective” on these matters you can always substitute “have a clue about the laws we are talking about” if that makes you feel better.

After all failing to read the topic you are commenting on is a universal phenomenon.

I think Black Kettle…

I think you and Black Kettle share a lot of things. Thoughts, cookie files, posting times, etc.

Sam November 9, 2005 5:50 PM

I’m 16 and I want to now about these laws, but all anyone gives me is, ‘oh, don’t worry’ and other patronising crap because they happen to be older. Can someone explain these too me??

wikid November 13, 2005 9:21 PM

fikin jesus, people are allowed to have a say right? it is after all a free country… after two of your great friends die in a car accident from drunk driving then you’ll realise just how precious and valuable life really is.

tell your family you love them, your husband/wife that you will never let them go and your friends that you will always be there. people always go on about how to tell people just how much you care because tomorrow might be to late. you jus think, i will always be here tomorrow so there is no need. you never know how valuable this is until it happens to you. truat me because it has happened to me. well what if tomorrow is to late and that special someone has died or is leaving and you will never see them again. so dont let this fool you. people love you for who you are. always be yourslef and tell people how much you care. remeber to learn from mistakes you have to make them. take each day as it comes and live every day like its your last and to the fullest. so if tomorrow doesnt come you know you have made the most of your life whilst you have lived it.

in loving memory of Michael Pansini and Jamie Williumson who died on the 17th november 2005

Tank November 18, 2005 11:39 PM

Quote: “I’m 16 and I want to now about these laws, but all anyone gives me is, ‘oh, don’t worry’ and other patronising crap because they happen to be older. Can someone explain these too me??”

Contrary to all hysteria here these new provisions introduced very little new legal principles which were not already in effect in Australia.

The main areas which these laws effect are prohibiting encouraging violent acts against the government (on a scale which threatens state), on the basis of race or religion (either now a more or less serious crime based on your state’s laws) and also criminalises planning for a terrorist attack where otherwise the crime not yet committed may be a factor in determining guilt or sentence.

Usually you would have an outcry about people not having yet blown anyone up being detained as though they had.

The application of this principle however is shown with the people arrested this month for possessing a range of illegal weapons and bomb making instructions and recipies after ordering chemicals in bulk for the same who’s defence appears to be that they were preparing for a different type of “jihad” than the one you are familiar with.

This appears to be behind the stunning lack of criticism of these laws after they were used shortly after this issue was raised.

If your enquiry is on the basis of querying how these laws apply to you the answer would be the same way they did beforehand. Non-participation in planning for terrorist attacks or hate crimes should render them of no relevance to you.

Likewise for all the concern shown here in relations to “shoot to kill powers”. Police pretty much globally already have those powers and you will get shot this month just like you would last month… posing a threat to life.

Again…. a stunning lack of concern shown for the suspect shot in these Australian raids. Might having something to do with the guy being eligible for “shoot on suspicion” this month the same way he did last month…. by shooting at cops on his way to a mosque with two handguns.

At some point you really need to realise there is a different threat which needs to be addressed with different powers. You will be killed by bees, sharks or lighting long before you are killed as a result of these laws if you don’t participate in what they are in place to address.

Come to think of it, given Bruce’s fondness for quoting cause-of-death statistics as a reason not to let undue fear colour perceptions of the likelyhood of terrorist attacks in evaluating security it is notable he leaves the same reasoning out in cases like this.

Perhaps deaths caused by false-positives or outright mistakes in police profiling uning shoot-on-suspicion scenarios really don’t serve him that well.
What’s the count this year ?
1 vs 2000 ?

teeena April 17, 2007 4:29 AM

After reading the comment by wikid and knowing about the aftermath of Michael Pansini’s case from the ozzie press coverage I feel outraged that Steve Longbottom, who killed 2 people while drink driving, while he had his licence taken for drink driving previously has just been charged with ‘dangerous driving’ and not manslaughter. If he is lucky now with the sentencing and if he is elegible for parole he can be free in just 18 months, ready to offend again! So I am more concern with the fact that at the moment 18 months is the price you pay for killing two young people more than antiterrorist law! What kind of message does that case send to the community? I feel like the guy in China, not proud to be Australian right now TBH.

anonymous1 May 5, 2007 7:47 PM

this info is so good that im gonna right (haha, write!) an essay on it. u guys are great, keep up the good blogging.

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