Until September 11, Australia had no national laws dealing with terrorism. It and other forms of political violence were dealt with by the ordinary criminal law. Since March 2002 we have enacted 44 new terrorism laws, or a new law around every seven weeks.

In our view, new laws were needed to deal with terrorism. A legal response was required to signal that as a society we reject such violence and to ensure that our police and other agencies have the powers they need to protect the community. Laws were also needed to fulfil our international obligations as a member of the United Nations.

Governments across Australia deserve credit for recognising this. In hindsight, our legal system prior to September 11 reflected complacency about the potential for political violence in Australia and the region. However, systemic issues must be addressed if we are to avoid repeating the errors of the past five years.

First, laws have regularly been made without sufficient justification that the change is needed. A new anti-terror law should be enacted only where the argument for it has been powerfully made so as to justify it as a means of dealing with a specific and identifiable problem.

It is not surprising that our political leaders, as members of parliament and law-makers, have turned to new laws as a front-line response to terrorism. New legislation is at least within their control and is a symbolic and potentially practical response. However, while our elected representatives may want to be seen to act in response to the attacks that have taken place, we need to be realistic about what new laws can achieve.

New laws cannot provide long-term solutions. Legislation is unlikely to tackle the causes of terrorism, nor to deter a terrorist from a premeditated course of action. Further, law-making may direct attention away from the debate over other, more effective, responses. As the drivers of change after a terrorist attack, grief, fear and political opportunity are some of the worst possible motivations.

Second, our response after September 11 has been essentially reactive. The rush to legislate after an attack has been a hallmark of Australian counter-terrorism. Each new attack and set of disturbing images has meant one or often several new laws. However, by itself, an attack does not mean that the government needs new powers. This can only be determined after careful scrutiny of our existing laws in light of what can be learnt from the attack.

Unfortunately, new laws are often made with such haste that a careful assessment of where we already stand has been made near impossible. The laws passed after the London bombings were enacted so quickly that they came into force before two ongoing inquiries into the effectiveness of our existing laws could report.

The cycle of an attack followed by a new law is dangerous. Driven by fear and the need to act, we run the risk of an ongoing series of over-reactions. This is the dynamic that terrorists rely upon. What they cannot achieve by military might, they seek to achieve by stimulating our fears. By our own actions we may isolate and ostracise members of our community, who instead of assisting with intelligence gathering become susceptible targets for terrorist recruitment. Through our over-reactions and short-term thinking, we may actually make ourselves more vulnerable to terrorist attack.

Third, we have lost sight of the vital need to preserve fundamental freedoms. The object of the laws cannot be national security at all costs. The goal should be to protect the community from terrorism but only while ensuring that we retain the freedoms that make Australia the country it is. This involves some give and take.

Some basic rights like privacy should be limited in appropriate circumstances to ensure that our police and intelligence services can deal with a threat. On the other hand, many other changes cannot be justified because they disproportionately undermine democratic principles. The new sedition laws are an example. They potentially imprison people for what they say rather than for what they do, and arguably for little gain in preventing a terrorist attack. We should not damage our democracy and liberties in this way in the name of defending them against terrorism.

Australia is especially vulnerable to this. As the only democratic nation without a national bill of rights, we must rely upon the parliamentary process or the good sense of our political leaders. These are ineffective checks at a time of community fear and, in any event, are not safeguards that are now regarded as sufficient in any like nation. While it is encouraging that the ACT now has a Human Rights Act and Victoria a Charter of Human Rights and Responsibilities, protection for our speech and other rights is also needed at the federal level.

Fourth, public debate on our laws is often not based upon a realistic assessment of the risk and an understanding of the limits of the law. There has always been and will always be a risk of a terrorist attack. If the goal is to eliminate that risk, we will fail.

The law, no matter how stringent, cannot guarantee our security. Moreover, as history shows, the more repressive or draconian the law, the more that some people will be likely to take extreme action. The law can thus also become part of the problem that we are seeking to mitigate.

It is natural that our fears will lead us to do all that we can to protect ourselves and our families, especially in response to a faceless and unknown threat like terrorism. With many Australians believing that a terrorist attack is likely at some point in the future, it is not surprising that there is great pressure to enact new laws at any cost. But what is needed are leaders who, rather than playing to our fears, help us to understand that we must accept a level of risk of terrorist attack. If we pursue the illusory goal of full protection from terrorism, we will only do a much greater damage to our society and its freedoms and values.

We risk repeating these same mistakes if we do not change course. We must endeavour to resist meeting fresh attacks with new laws that will further erode our fundamental freedoms, increase fear and anger in parts of the community and make the problem more intractable.

Dr Andrew Lynch and Professor George Williams are based at the Gilbert + Tobin Centre of Public Law at the Faculty of Law, University of New South Wales. This is developed from their book What Price Security? Taking Stock of Australia's Anti-Terror Laws (UNSW Press).