27 October 2005
HREOC President says anti-terrorism bill needs debate on practical considerations before it is too late
President of the Human Rights and Equal Opportunity Commission, John von Doussa QC, today stressed the need to stop and consider the practical implications of the Anti-Terrorism Bill 2005 and the context in which it will operate before it is passed as law.
Mr von Doussa said it is important to acknowledge that the government can and should legitimately make tougher security laws in a time of heightened concern about terrorism. Everyone wants to make sure that they have done everything to help prevent terrorist activities occurring in this country.
“I also recognise that there may be circumstances for the Australian Federal Police (AFP) to seek urgent restrictions on particular people, be it through a control order or a preventative detention order. Indeed, in the case of preventative detention orders, the urgency that arises with imminent or actual terrorist attacks may require that a judge be initially bypassed from the process altogether (as currently proposed in the bill),” said Mr von Doussa.
“However, what concerns me most about the current version of the anti-terrorism bill is what happens after a person is first detained or served with a control order and their liberty is restricted.
“International human rights law requires that a person who is detained must have the right to challenge this detention in a court without delay. Review before the court needs to include: consideration of whether the order is based on a correct understanding of the facts; whether the detention is fair; whether it is reasonably necessary in the circumstances; and whether it is proportionate to the goal of protecting national security. The current form of the bill simply fails to meet these basic guarantees.”
Mr von Doussa said he wants people to think very carefully about what this means and how it could affect them.
“We have recently seen the consequences of mistakes in the exercise of detention powers (as in the Cornelia Rau case). We are now contemplating a situation where a person who is detained by mistake will not have any real opportunity to contest their detention on the basis that the authorities got it wrong. All they can do is seek judicial review before the Federal Court or High Court – a form of review that is very limited and confined to technical legal grounds. It does not allow the questioning of facts or the receipt of factual material from the detained person.
“In my view, the absence of the right to adequate review is the major human rights weakness in the current draft of the legislation.
“You or I, or your 16-year-old daughter or son, could fall under the ‘reasonable suspicion’ provisions of the new bill relatively easily. Consider this – a member of your family innocently calls the mobile phone number of a person who runs a dog-walking business regularly for a number of months - a person who happens to be suspected by authorities of being a terrorist. That family member is then locked up for two weeks due to ‘reasonable suspicion’ arising from regular contact with a suspected terrorist. There would be no realistic opportunity to challenge the detention. This must be a scenario that Australians would find unacceptable.
“On top of this, the current bill would place significant restrictions on a detained person’s ability to contact other people. While detained, all that a person’s family or employer might receive is a simple fax stating “I am safe, but unable to be contacted at the moment”. What would one’s spouse or employer think if a message like this was received?
“As others have pointed out, the issue of the right to a fair hearing is also a concern under the currently proposed bill. If a control order is made against you or a member of your family on the basis of mistaken facts, you should have a proper opportunity to contest this. But you may not be in a position to point out a very obvious mistake (for example - there are two John Smiths in your apartment block and the authorities have grabbed the wrong one) if you do not know the basis for the control order.”
Mr von Doussa said that these matters also tie into constitutional concerns which have been recently expressed about the bill.
“Regrettably, our constitution lacks a bill of rights - but it does provide some relevant protections related to the separation of powers. The involvement of the courts in non-judicial functions could be seen as unconstitutional if the functions in question are not compatible with the judicial office.
“However, the government could reinforce its constitutional position by providing better review rights for both preventative detention orders and control orders, and ensuring, where possible, that both parties are represented when an initial control order is made.
“There is a practical dimension to consider here too. If these laws are vulnerable to constitutional challenge, then our security forces are potentially going to be trying to deal with a crisis situation with laws that could be rendered inoperative in the middle of an emergency. A ‘weapon’ in the ‘war against terror’ is of little use if it fails to work in the middle of the battlefield.
“We need to debate the bill with these practical considerations in mind and require the time to do so. Human rights and rights conferred by the Constitution are not merely abstract ideals or dry technical legal arguments; they are the lines in the sand that need to be drawn and should not be crossed if we are to protect both national security and the interests of all citizens.”
Media contact: Paul Oliver (02) 9284 9880 or 0408 469 347
Last updated 27 October 2005.
