Shar Adams
President of the Australian Human Rights and Equal Opportunity Commission, The Honourable John von Doussa, QC, has claimed that the new counter terrorism laws are of the kind that identify a police state.
“The characteristic of a police state is that the police exercise power on behalf of the executive, and the conduct of the police cannot be effectively challenged through the justice system of the state.
“Regrettably this is exactly what the laws, which are currently under debate, will achieve.”
Mr. von Doussa was speaking on the human rights perspective of the Anti-Terrorism Bill No 2 at a forum in Canberra. In his speech he expressed concern over the threats the new laws make to fundamental rights and freedoms as set out in the International Covenant on Civil and Political Rights (ICCPR), of which Australia is a party.
Most at threat are “the right to liberty”, “the right not to be subjected to arbitrary arrest or detention”, “the right to be told reasons for arrest” and the right of a detained person to appeal to a court so that “court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.”
Under the proposed changes, the issuing authority for extended detentions (between 3 and 14 days) bypasses sections of the Australian Constitution which “allows the High Court to review the legality of decisions of officers of the Commonwealth.”
Instead the federal government says that preventative detention orders will be subject to ‘judicial review', a term Mr. von Doussa describes as a ‘weasel word' and a ‘warning sign of looming injustice'. A judicial review will not, in fact, allow the detainee ‘to find out any of the factual basis' for his detainment , nor will it permit him to ‘give evidence to correct factual mistakes'.
An example of what is to come was evident in the Sydney Central Local Court last week when the Director of Public Prosecution, Wendy Abraham QC, appealed to the Supreme Court to suppress the police statement setting out evidence against eight Sydney men, accused of planning to make explosives for a major terrorist attack. While Wendy Abraham QC offered no evidence for her appeal, claiming merely that is was hindering the investigation, it does identify the present effectiveness of our courts which Mr. von Doussa says; “are well used to dealing with sensitive information, and making orders that suppress evidence where its disclosure would be against the public interest.”
As to the Government's response to criticisms of its proposed new laws, Mr. von Doussa says it has been, in effect, to say; “Trust us….We must have these powers, and you can be assured we will not abuse them.” The difficulty with that approach he says “is that reality turns out otherwise” and cites the cases of Cornelia Rau and Vivian Solon both demonstrations of “how abuses of power occur where there is no accessible and realistic way people can question what is happening to them”.
The Government has claimed there are precedents for their new anti-terror laws citing the measures taken in the UK. However in Australia, unlike other Western democracies, there is no Charter of Human Rights. Without a Bill of Rights, legislation is the main source of human rights protection in Australia. If there are no objective means of checking the exercise of power, which is in effect what this Government is proposing, it not only contravenes fundamental human rights but also the foundations of what it is to be Australian suggested Mr. von Doussa.
