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Anti-terror laws make a Federal Bill of Rights more necessary

By Greg Barns - posted Wednesday, 21 September 2005

On September 27 Prime Minister John Howard will ask each of the state premiers and chief ministers to sign off on a new package of anti-terrorism laws. In the absence of any commitment on the part of the Howard Government towards strengthening human rights protections for Australians, the state and territory leaders should not agree to Mr Howard's request.

Although the laws proposed by Mr Howard are based on similar provisions in the UK, there is one crucial difference between the two jurisdictions. In the UK, European human rights conventions have been imported into British domestic law through the passage of the Human Rights Act 2000. The English courts provide redress for citizens adversely impacted by the actions of government in a way that simply does not, and cannot yet, occur in Australia. And even though the Blair government is seeking to "opt out" of certain EU human rights obligations it can only do so with difficulty given the hostility of the courts and the House of Lords to such a course of action.

The package of laws proposed by Mr Howard includes giving the Federal Police the capacity to ask a court for 12-month "control orders" restricting the movements of people who pose a terrorist risk by tagging them; allowing the Federal Police to detain for 48 hours anyone believed to be involved in terrorist activity to prevent further attacks and to prevent the destruction of evidence; and giving security agencies the power to detain people for up to 14 days without having to charge them with an offence. The package also includes updating the crime of sedition so that people can be charged with inciting violence against the community.


While the Prime Minister describes this package of anti-terrorism laws as achieving a balance between the need to arm the state with the means to combat terrorism and the rights of individuals to go about their daily lives without hindering their freedoms, this is clearly not the case.

The proposed laws are a further erosion of liberties and freedoms without providing any new protections. If Australia had a bill of rights or some other form of enforceable human rights protection mechanisms then Mr Howard would be on stronger ground.

Take, for example, the proposal to allow the detention of suspects for up to 14 days without charge. It was a similar provision, introduced in 1974 at the height of IRA bombings in English cities such as London and Birmingham that was used against the Guildford Four and Birmingham Six. In these cases ten "suspected terrorists" were detained for long periods until each provided the police with a 'confession' to their role in terrorist activity. As we now know, these men and women had their "confessions" beaten out of them by the police force. There was, at the time, no human rights laws which protected these people.

This power to detain for periods of up to two weeks was roundly abused by the British security authorities. As an English writer, Brendan O'Neill, has noted: "Of the 7,052 (mostly Irish) people detained under the Prevention of Terrorism Act between 1974 and 1991, only 14 per cent had charges brought against them. Many of the other 6,097 (86 per cent) were held for days at a time, denied access to a solicitor, interrogated (without the safeguards that suspects today are promised in police custody), and then released again - left with the stigma of being an Irish person arrested on suspicion of being involved in terrorism.''

And without human rights protections and guarantees, the capacity of police and security agencies to monitor the movements of individuals for periods up to 12 months is also open to abuse. In the UK and in other European countries the right to privacy has been available as a defence to those subject to surveillance. There is no such right available to citizens in Australia.

The case of the proposed amendment of the law relating to sedition will also materially curtail freedom of speech in Australia given that the crime of 'incitement to violence' is such an imprecise notion. If Australia had written into its Constitution or in a human rights law, the right to freedom of speech, this would provide some opportunity for those charged with inciting violence to argue a defence.


Mr Howard has indicated, in answer to concerns about the draconian nature of what he is proposing, that there be sunset clauses. He and his state and territory colleagues would be better off ensuring that Australia strengthened its human rights protections by way of a bill or charter of rights, so that the power of the state to trample on individual's rights and freedoms was limited for all time.

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About the Author

Greg Barns is National President of the Australian Lawyers Alliance.

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