27 September 2005

New Terrorism Laws - Tough on terror, tough on Human Rights

Proposals for new counter terrorism laws agreed to by federal, State and Territory leaders at today’s Council of Australian Governments (COAG) meeting in Canberra are tough on terror, but once again aspects of them are tough on basic human rights principles, President of the Human Rights and Equal Opportunity Commission, John von Doussa QC, said today.

“I have always supported the general approach of the government to continually review and update Australia’s counter-terrorism legislation to help ensure the safety and security of every citizen in this country. Undoubtedly, the human rights of every individual to be kept safe from violence is fundamental,” said Mr von Doussa.

The President said that there are a range of very positive initiatives which have come out of today’s COAG meeting including: the development of a national code of practice for CCTV; a review of national transport security arrangements; the development of a national emergency protocol; a national action plan to further inter-faith dialogue; and the development of national standards for the security industry.

“Each of these measures has significant human rights implications which the Commission thoroughly supports,” he said.

However, Mr von Doussa cautioned that sacrificing basic individual rights for security may seem tough and pragmatic, but it is short sighted and fraught with danger.

“These laws will have a significant impact on some members of the community, therefore it is imperative that these powers are carefully exercised and reassessed, on a regular basis, and exposed to thorough public scrutiny,” the President said.

Mr von Doussa said that a five-year review of the proposed terror laws and a 10-year sunset clause as agreed to today is excessively long, recommending three years (as prescribed in the current ASIO legislation) as necessary to regularly review the requirement for such laws.

“Invasive laws of these kinds can only be justified by real ongoing risks of the highest order. It is important that there be periodic debate in parliament to determine whether these laws are still necessary. Our leaders were given a briefing today by security agencies to satisfy them that these laws are needed – it stands to reason that the community should also be given the same assurance by periodic public disclosure of the main matters underlying the current risk assessment which are said to justify the continuation of the laws,” he said.

The President said that he was disappointed that the eight leaders agreed to so-called preventative detention measures which allow terrorism suspects to be detained for up to two weeks without charge in order to prevent a terrorist act or the destruction of evidence. These laws will build on similar legislation, to be introduced at the Commonwealth level, authorising preventative detention for up to 48 hours.

“It must be a matter of serious concern that the leaders have agreed to assist the Commonwealth to circumvent one of the fundamental human rights protections contained in the Australian Constitution which is understood to prevent the Commonwealth Parliament from passing such a law,” Mr von Doussa said.

Although the COAG Communique says that the laws will provide for judicial review, there are recognised limits to the usefulness of judicial review as a remedy. In particular, it does not permit the reviewing authority to test the reliability or accuracy of the alleged facts on which the issuing authority relies. It is necessary therefore that the legislation also allows a detained person to have the matter brought on promptly before the issuing authority for reconsideration in light of any new factual material the detained person wishes to adduce.

To make any right of review a realistic remedy access to legal advice is essential. A person needs to know of the right, and in a realistic sense, be able to exercise the right. The legislation should require the detaining authority to advise detained persons of the right in a language they understand, and to make available all necessary means of contacting a lawyer.

“I agree with the Prime Minister that these are “unusual laws” and that “we live in unusual circumstances”, but there needs to be balance, proportionality, open debate and caution when devising far reaching laws such as these,” the President said.

“Now that the states have agreed to these new measures, HREOC will be watching closely to see the details of these proposed laws and how they are exercised by government.”

Media contact: Paul Oliver (02) 9284 9880 or 0408 469 347