Giving Up Safeguards to Protect Against Terrorists

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Although supported by the German public, the Third Reich (1933 to 1945) is now recognised as a brutal regime signified by the totalitarian rule of an evil dictator.

The regime was preceded by the democratic Weimar Republic (1919 to 1933); the last stages of which saw the passing of laws which removed a range of civil liberties, including:

“the rights of habeas corpus… freedom of the press, the freedom to organise and assemble, the privacy of postal, telegraphic and telephonic communications”.

We all know what happened next.

Although the Nazi Party was popular and succeeded in passing laws to intercept ‘postal, telegraphic and telephonic communications’, its leader Adolph Hitler could only have dreamed of enjoying the same intimate access to the personal data of individuals that our government now has – thanks largely to advancements in technology being made accessible (without the need for a warrant) through meta-data retention laws.

Freedom of the press has been curtailed through instruments such as the Border Force Act and laws which make exposing crime and corruption a criminal offence.

Many have already been criminally prosecuted for exposing criminal conduct, including ‘good cops’, a group of charity workers from ‘Save the Children’ and regular citizens. The irony is obvious – being punished for exposing crime.

No society in its right mind would wish to be compared to the fascist Nazi regime – devoid of basic civil liberties and due process, with dissenters ruthlessly suppressed for speaking out against the government and its agents. All justified by pointing at a common enemy.

But history teaches lessons.

Removing Liberties by Identifying an Enemy

Just like the gradual dilution of civil liberties in Nazi Germany was ostensibly to protect against the perceived Jewish threat, and in ‘allied’ countries in post-World War II was to save us from Communism, it seems that just about any law these days can be justified by pointing towards the threat of terrorism – and that some Australians are unconcerned about giving up basic legal protections – believing that sacrifices are necessary for our protection, and that such laws will only affect terrorists.

Many have even called for agents of the State – including police and ASIO – to be left alone to do as they please when it comes to weeding out those they suspect of terrorism; without accountability for misconduct.

In Australia, the last few years has seen substantial erosions in a wide range of legal protections through:

– providing immunity from both civil and criminal prosecution to law enforcement agents who conduct anti-terrorism raids, even if those raids are unjustified and the agents commit heinous crimes,

– removing the right against detention without charge through instruments such as ‘control orders’ and ‘preventative detention orders’,

– eroding privacy through ‘meta data retention laws’,

– amending bail laws to enable those suspected of terrorism offences to be kept behind bars for years on little evidence,

– diluting the right to silence and even removing it altogether in certain cases,

– reversing the presumption of innocence for certain offences,

– bolstering the powers of law enforcement in a range of areas, including the power to arrest.

All of these – and more – have been justified, at least in part, by pointing at a perceived terrorism threat.

The Latest ‘Anti-Terror’ Laws

‘Post-sentence preventative detention orders’ are the latest in a seemingly never ending list of laws which take away basic rights and protections. The laws have been justified, as usual, on the basis of a terrorism threat.

Prime Minister Malcolm Turnbull obtained support from state and territory leaders for the new laws, which propose to keep those convicted of terrorism offences behind bars even after they have served the entirety of their prison sentences.

And earlier this month, controversial laws were passed allowing dual nationals to be stripped of Australian citizenship if the Immigration Minister suspects them of being linked to terrorism.

These laws remove due process, take away the presumption of innocence until proven guilty, and breach of the separation of powers between parliament and the courts.

Like previous laws which provide immunity from prosecution for ‘terrorism raids’, the new laws essentially create a single ‘judge, jury and executioner’ – in this case, the Immigration Minister; a partial person swayed by political considerations.

In addition to all of this, New South Wales Police began training last month to shoot first when dealing with suspected terrorists – a shift away from the previous policy, which encouraged police to assess the nature of the threat, then contain the situation and negotiate.

The policy has been criticised on the basis that it can be impossible to quickly determine whether an armed person is a terrorist or not, and could lead to a further escalation in fatal shootings by police.

Acting NSW Police Commissioner, Nick Kaldas has justified the shift by saying,

“One of the features of terrorism is these people are not like normal criminals, their mentality is entirely different. They don’t want to get captured and they may well be prepared to die. They’re jihadis, we’ve got to act differently.”

He does not explain, however, how a person will be quickly identified as a ‘jihadi’ as opposed, for instance, to someone who is suffering from a mental health condition or is otherwise unstable.

Where to From Here?

No government or society wants to be compared to the evil totalitarian regime of Nazi Germany. But history teaches us that the move away from democratic ideals like individual liberties and legal safeguards towards totalitarianism can be as gradual as it is dangerous.

All such regimes identify and systematically demonise a primary enemy, and call for the public to unite against that threat for their own safety – whether that enemy be the Jew, Communist or, now, the Muslim Terrorist.

The Germans during the later stages of the Weimer Republic were slowly conned into believing that all their troubles were caused by Jews and Communists – dangerous threats that needed to be suppressed and, ultimately, eliminated. They were happy to give up their personal freedoms to enable the state to do what it ‘needed to’.

It took many years for Jews to be demonised to such as extent that the German public agreed that they should be ‘shot first and asked questions later’; a policy now enjoyed by police in NSW in respect of suspected terrorists.

Civil liberties were systematically removed, and the German secret police were eventually given immunity from civil and criminal prosecution for certain forms of raids – the same immunity that Australian law enforcement agencies now enjoy for raids conducted on suspected terrorists.

There is little question that in Australia, protections and liberties are gradually being taken away from us, and that agents of the state are being given more and more powers.

Let’s learn from history, and be careful not to let fear and hatred overpower reason.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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