Without safeguards, new laws are suspect

September 19, 2005

A human rights act would help maintain the balance between rights and security, writes Ben Saul.

When faced with terrorist violence, it is tempting for a community to attempt to legislate threats out of existence. The July bombings in London again exposed the vulnerability of liberal democracies to terrorism, and quite properly motivated our own political leaders to reconsider Australia's security.

A feature of the legislative proposals announced by the Prime Minister is the extent to which they unashamedly borrow ideas from other countries, particularly Britain. While there is nothing wrong with learning from others, there is a danger in selectively transplanting laws from legal systems which are very different to our own.

While Australia inherited British common law, the past decade has seen an increasingly wide divergence between Australian and British law. Since the adoption of its Human Rights Act in 1998, human rights principles now permeate British law in ways unknown in Australia, not least in controlling excessive responses to terrorism.

The British courts can independently supervise the impact of terrorism laws on the rights and freedoms of people in Britain, whether citizens or foreigners. For example, last year the House of Lords found that the indefinite detention of suspected terrorists was unjustifiably discriminatory because it targeted only foreigners.

Human rights law does not prevent effective responses to terrorism, since it allows rights to be limited or suspended to protect other social values, including security. Indeed, British courts have accepted their Government's view that terrorism is a serious threat which may justify temporarily suspending some human rights.

At the same time, human rights law does ensure governments are held to account for restrictions they place on rights, so that they do not abuse their power under the guise of protecting security. It provides a principled framework for evaluating terrorism laws, ensuring they are strictly necessary and proportionate to the threat.

In the absence of similar protections in Australia, Parliament should proceed carefully before agreeing to further terrorism laws. Some of the proposals are reasonable enough, such as strengthening terrorist financing laws and offences against aviation, deterring unattended baggage, better screening of citizenship applications, and increasing closed-circuit television surveillance (though this may just shift threats off-camera).

In contrast, it seems difficult to justify intrusive control orders, preventive detention for 14 days, notices to produce, extended time limits on ASIO warrants, stop and search powers, and higher penalties for giving false or misleading information to ASIO. Other proposals are still too vague to comment on meaningfully.

ASIO already has extensive powers to question and detain for up to seven days people who are not even terrorist suspects, while the federal police may hold terrorist suspects for an extended period of 24 hours. In light of this, it is difficult to see how the proposed power of preventive detention is necessary, unless the intention is to indiscriminately detain whole groups on little evidence of terrorism.

The proposal to replace the crime of sedition with a new offence of inciting violence against the community (and the armed forces) is drawn from the Gibbs review of federal criminal law in 1991. Yet the proposal tells only part of the story. The Gibbs review recommended modernising many archaic security offences, and the Prime Minister has cherry-picked those recommendations, which had little to do with terrorism, and taken them out of context.

The proposed new offence is linked to a proposal to ban groups for advocating terrorism. Both the incitement offence and banning these groups risk criminalising legitimate expressions of political opinion, media comment and academic views, which may seek to discuss the causes of political violence and, in some circumstances, to justify it. Criminal law already allows the prosecution of incitement to crime, so it is a hasty and imprudent overreaction to extend the law further through these vaguely worded proposals.

Finally, extending the waiting period for citizenship by 12 months to three years is not, of itself, problematic, since many countries require longer periods of residency. However, characterising this proposal as a counter-terrorism measure casts unwarranted suspicion on foreigners as somehow linked to terrorism, and conflicts with Australia's immigration aims of encouraging the naturalisation of migrants.

The Prime Minister claims the proposals reflect "world best practice". If the Government is really committed to pursuing "world best practice", then it has every reason to adopt a national bill of rights, as in Britain. An Australian human rights act would ensure that there is independent judicial scrutiny of counter-terrorism laws, to help ensure that rights and security do not tip dangerously out of balance.

Dr Ben Saul is a lecturer in the faculty of law at the University of NSW.
