"… the real terrorists are the enemies of civil liberties."
The Hon Justice Michael Kirby, Judge of the High Court of Australia

Each year, the first Tuesday of November sees thousands of Australians flock to the Melbourne Cup horse race, and millions more cheer from afar. This year, on Melbourne Cup day, as the nation celebrated, the government quietly introduced wide ranging anti-terror laws into parliament, proposing to substantially amend the existing criminal code in response to the threat of terrorism. The Anti-Terrorism Bill (No. 2) ("the Bill") signals a serious erosion of basic human rights of the Australian people.

The Bill has been passed by federal parliament, in the face of significant opposition. In short, the Bill sets out a legislative regime ("the law") that introduces a system of control orders and allows preventive detention. These changes significantly increase police power in Australia.

Under My Thumb - Control Orders

The first major change under the Bill is the introduction of 'control orders'. These are court documents that can restrain a person from doing something, or compel a person to do something. A person subject to a control order can be restricted from a number of activities. For example, a control order can restrict a person from going to a certain place, communicating with certain people, using the telephone or the internet or performing their job. A control order can compel a person to report for regular police checks, remain at home or wear a tracking device. Control orders are granted by the Courts, following an application by a senior federal police officer, with the written consent of the Attorney-General. Under the law, the Court may grant the application if it believes that it would help substantially prevent a future terrorist act, or if the person has been trained by a group that has been defined as a 'terror' organisation. Control orders throw up a number of human rights issues. In broad terms, the orders potentially violate the rights to liberty, freedom of association, freedom of movement, freedom of religion, freedom of expression, the right to privacy and the right to work. The violation of these rights breach international human rights standards, and also Australia's obligations under the International Covenant on Civil and Political Rights (ICCPR). Control orders also breach due process rights. The application is made without the involvement of, or reply by, the person affected. The person affected can apply to revoke the order, but the onus is on them to show why it should be removed. The Court grants the application on the basis of reasonableness, the civil standard of proof. The higher 'beyond reasonable doubt' criminal standard of proof should apply, particularly given the potentially criminal nature of the alleged behaviour, and the significant limits a control order places on the affected person's freedom if granted.

Source: Google /images

Disappeared - Preventive Detention

In chilling echoes of the 'disappeared' of Argentina and Chile under military regimes in the seventies and eighties, the law authorises the Australian Federal Police to apply to itself for preventive detention orders, which allow the police to detain a person who has not committed an offence for up to 48 hours, while potentially denying them contact with their legal representatives and family.

The law contemplates two different forms of preventive detention. The first is initial preventive detention. An application is made to a senior member of the Federal Police, who can authorise preventive detention for 24 hours, which can be extended to a maximum of 48 hours on further application. The second is continued preventive detention. This involves an application to a Judge or Magistrate who has been appointed by the Minister and who, acting in a non-judicial capacity can authorise detention for 48 hours.

An application for preventive detention is granted if the police can show reasonable grounds for a belief that a person is involved, broadly, in a terror act. The definition includes a person who possesses something connected to the future commission of a terror act. The detainee has no chance to reply to the allegations, provide contrary evidence, or to go before a court to have the reasonableness of the grounds tested. After the fact, the police are not required to provide a reason for the making of the order, or the information that led to the filing of the application. This means that the detainee cannot later test the validity of the detention in a Court. This is particularly concerning in the case of initial preventive detention, where the body granting the application is also the body making the application.

These provisions breach a number of international human rights standards, and Australia's obligations under the ICCPR. Specifically, they breach the right to liberty and to due process. Under the ICCPR, every person has the right to be free from arbitrary detention, and the right to security of their own person. The right to due process includes the right to judicial review if detained and the right to be presumed innocent.

Shoot to kill - the use of lethal force

In mid-July, police on the London tube mistakenly shot and killed a Brazilian man, Jean Charles de Menezes, under 'shoot to kill' provisions recently introduced in the UK terror legislation. An original version of the Australian Bill authorised police to use lethal force - to shoot to kill - if the force is necessary to prevent the death or serious injury of another. This is in stark contrast to the traditional approach to lethal force, which can only be used in response to an immediate threat. Rather than using lethal force only in response to an immediate threat to life, police would be empowered to kill to prevent someone being injured at some point in the future. This is a broad, general power that is difficult to quantify. 'Shoot to kill' provisions come dangerously close to breaching one of the most basic human rights, the right to life. Fortunately, the provision was removed from the draft Bill before it was introduced in parliament.

Winning a war on terror

The measure of a successful terror attack is not in fallen buildings, or even in lives lost. A terrorist wins when the fundamental principles of democracies are eroded, and the fundamental structures of our democracies are dismantled. A democratic society is a society that is built on the principles of individual freedom, due process and the protection of basic human rights. The enactment of anti-terror legislation that clamps down on freedom, disallows judicial or independent review and tramples over basic human rights, attacks the foundations of our communities. As democracies, we must remember what we stand for, and ensure those values are not lost, even in the face of adversity.

Daniel Woods
Access to Justice Programme
CHRI