After my two part mega entry on the terrorism legislation last week, several readers complained that they couldn’t understand what I was talking about. I’d made a classic mistake – put my lawyer’s hat on and written in legal discourse, a code impenetrable to non-lawyers.

This problem afflicts many such debates of enormous importance to the character of our democracy and the rights of our citizens against government control, but the debate’s lack of accessibility often means the damage is done before many people realise what they’ve lost and what the government has gained.

Sorry for that. I’ve made another attempt, set out below. After that, responses to Coming soon: Too many terrorists from Michael Murray and David Davis.

Shaking hands with big brother

Pick the difference between the following criminal acts.

(1) Martin Bryant massacres 35 people at Port Arthur. A bloke discovers his girlfriend has slept with a mate and torches his car. Football friends bash supporters of the rival team. Drunken mates end the night throwing rocks at shop windows.

(2) A woman kills her newborn child because “God told me I’d given birth to the devil”. A man thinks all Arabs are terrorists, and kills his neighbour “as my bit to save civilisation”. Aboriginal youths vandalise the new Reconciliation Walk in Canberra because “it’s a symbol of our oppression”. Protesters at the Woomera detention centre pull down a fence to get closer to asylum seekers.

In (1), each offender gets the full protection of the criminal law and maximum penalties vary according to the nature of the crime. In (2), each has committed “a terrorist act” and can be detained incommunicado for up to six days by ASIO before arrest and people who ASIO believes can help them in their inquiries get the same treatment. All offenders face life in jail. If any belong to an organisation, the government can, in many cases, ban it even before a charge is laid or proved.

The extremity of the difference is courtesy of the Security Legislation Amendment (Terrorism) bill to be considered by PArliament soon. For the first time, the “motive” for the crime, rather than the offender’s action, is crucial. If someone causes serious harm to a person or serious damage to property to advance “a political, religious or ideological cause” he is guilty of a “terrorist act”, and the rulebook goes out the window.

Why has terrorism been so broadly defined? In a statement on December 18, Attorney-General Daryl Williams said “a terrorist act” would be “an offence under the UN and other international counter-terrorism instruments, or an act committed for a political, religious or ideological purpose designed to intimidate the public with regard to its security and intended to cause serious damage to persons, property or infrastructure”. In other words, what most of us would agree is terrorism.

But the qualifier has gone. Try as it might, the Senate committee examining the bill cannot get the government to say why, although it admits that many protests, including picketing, are now drawn into the terrorism net. Its response: people should trust the police not to prosecute and the government to be circumspect. Yet the Attorney-General’s department said that, in practice, the police would likely charge an alleged offender as a terrorist or a mere criminal depending on which charge would be easier to prove.

The result is sinister laws giving this and future governments carte blanche to persecute individuals and organisation opposing its political interests. The Attorney-General can ban an organisation if he believes it “has endangered or is likely to endanger the security or integrity” of Australia “or another country”. That means he can ban free Tibet movements (endangering China), free West Papua movements (endangering Indonesia), and could have banned free East Timor groups and the ANC. Anyone who remains a member of or donates to or “assists” a banned organisation is guilty of a crime, penalty 25 years jail.

The potential of all this is summed up by Melbourne QC Julian Burnside, a member of Liberty Victoria. Agreeing with evidence from the Law Council that the assault on Parliament House by renegade protesters during a peaceful demonstration several years ago would now be “a terrorist act”, he said:

“Imagine that same episode at Parliament House: lots of damage and so on. Then imagine that in one scenario all of the people participating are dressed in balaclavas and have CFMEU logos front and back. Next imagine that they are all Aborigines. Next imagine that they are all distinctly Middle Eastern in appearance. Next imagine that they are all calling out in a broad Irish brogue. Add the stereotypes as you like. At that point, ask: will they be treated in any different way? Will people understand this legislation any differently, according to the identity of the people involved?

“I suspect that the honest answer is that, yes, they will. If it were a bunch of middle-aged housewives who had just got a bit carried away after bingo, I think that people would react rather differently.

“Then add to that this question: what is the political complexion of the government of the day? Does that make any difference to your confidence that there will or will not be a prosecution?”

On the power to ban organisations, Burnside said: “Proscribing an organisation is tantamount to proscribing modes of thought – because what makes an organisation, generally speaking, is a community of ideas or beliefs. (This is) nothing more than an assault on freedom of thought.”

Add the fact that in evidence to the committee the government has set out no inadequacy in the present criminal law to deal with terrorist acts except in planning and training, and it is impossible to argue that the government has no ulterior motive for this extraordinary assault on Australia’s democratic traditions and freedoms. I wonder what that might be.

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Michael A. Murray in Ettalong Beach, NSW

I just read your article on terrorism legislation. Don’t panic. I was glad they are considering dramatic laws; we’ll need them. When the US Embassy in the MLC building is detonated, causing the collapse of a lot of the building, these laws will take on a life of their own.

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David Davis in Switzerland

I have just read Too many terrorists. It’s all on the public record but it needs to be shown to us as you have because few of us trawl through the records. You’ve shown though that a little trawling can reveal a lot.

There would be only a tiny minority of Australians who would not support tough action being taken against terrorists. Most Australians would support legislation making it easier to prevent and prosecute terrorism. That’s the generalities of it and few would disagree.

But there’s a problem. Australians can be justifiably be proud to live in a society of laws. The rule of law is sacrosanct. The thing about laws though is that they are very specific and there are strict rules on how they are to be interpreted. This is not a general thing, it is based on the principles of statutory interpretation. The problem is that if a bad law is written, it must be followed.

This may sound extremely basic but it is worth remembering how laws are interpreted in the courts. We should stop bad laws from being introduced or seek to overturn them if they are introduced. We should be particularly wary of laws which may impede our freedom to dissent. That is one of the most precious things we have.

Again we face the challenge of complexity. If you protest against draconian anti-terrorist laws you will be immediately portrayed in simplistic terms as being one who is soft on terrorism. It’s not that simple though.

I’m deeply concerned and suspicious. The responses from the government side were inadequate and too general. There needs to be more specific responses regarding specific sections of the legislation. History has taught us that defining groups as being against the state is loaded with risk. If they are going to go down that path, they’d better be very, very careful. Everyone will be watching.