Tony French.

counter-terrorism notice
Porter’s Lodge – Portsmouth Historic Dockyard – Counter Terrorism Response Level: Heightened. Elliott Brown. flickr cc.

In one of Anthony Powell’s novels, Dance To The Music of Time, there’s a line in which one of the characters, musing about the European events then rapidly climaxing towards the commencement of WWII says, “Rights have to be earned (and fought for); privileges on the other hand can be granted and withdrawn at any time”.

Have recent Australian governments been treating many of our accepted human rights and freedoms as privileges which can be amended or taken from us at any time of parliament’s sitting? Consider the slew of freedom-infringing counter-terrorism legislation enacted in the past decade and a half. Does it amount to lost ‘rights’, or withdrawal of some privileges?

The reason given for such legislation is that fanatical groups have ‘declared’ war on the west, and western governments have in turn declared ‘war on terror’.

At stake here is the balance between upholding the rule of law – our accepted rights and freedom from undue restrictions on our liberty – while permitting ‘operational flexibility’ to those whose jobs it is to counter the extremists. In blunt words, how far do we allow our own people to do nasty things to others to protect our ‘Australian way of life’?

Have our measures to stop terrorism gone too far?

TEARRISM. Poster Boy. flickr cc.

Objectively, is our legislative response balanced and proportional to the extremist threat and our rule of law?

I suggest the response is unbalanced and disproportional to the threat.

By 2009, some eight years after 9/11, the Coalition government has enacted more than 40 new counter-terrorism laws. Incoming Labor introduced even more, such as granting police increased powers to enter premises without warrant in ‘emergency’ situations, widening the offences of treason and sedition, and even making an offence of a ‘terrorist hoax’. We have more draconian legislation than the ‘frontline’ English.

And our legislative enactments keep on coming, the latest being a proposed amendment to make children as young as 14 accountable and detainable, and subject to control orders under counter-terrorism legislation.

These are remarkable ‘peacetime’ powers. ASIO has unprecedented power to conduct covert operations which might otherwise be unlawful. If the media reports on a covert operation, even a bungled one, a brave journalist faces a ten-year stint in jail. We just won’t know. With Data Retention legislation (metadata), we are all under surveillance.

We are placing significant trust in our enforcement agencies, a trust which has at times miscarried: think children overboard, Dr Haneef, David Hicks, and the cloak of secrecy surrounding detention centres. Conveniently, refugees have been conflated with terrorism, and rebranded as illegals.

Next time at an airport here, take a look at our country’s new face of enforcement, the paramilitary Borderforce.

Why have we so passively surrendered our rights? Governments of either persuasion have easily persuaded parliaments to begin the diminution of the rule of law with little opposition either from the Opposition or from the Australian public.

Defending our human rights

One notable voice of protest is coming from the aptly-named Australian Human Rights Commissioner, the unjustly maligned Gillian Triggs. She witheringly says Australians don’t even understand their democratic system. “We are content”, she says, “to have parliaments compliant with passing legislation to strengthen the powers of the executive arm of government and exclude the courts”.

Hers is an indictment not only of us ordinary citizens, but of our leaders, too. Some may recall that infamous interview of the then Queensland Premier, Joh Bjelke Petersen, who had no idea of the separation of powers doctrine. Our continuing collective ignorance has allowed executive overreach of executive government.

Freedom-diminishing legislation, once enacted, begets further like legislation, sold to us on the basis of ongoing ‘community safety’. As if all this increasingly draconian legislation will prevent all the ‘lone wolf’ attacks, events which we must unfortunately now expect from time to time. Once enacted, such legislation is not easily wound back, nor readily repealed. There have been no ‘sunset’ provisions.

Admittedly, there has been some parliamentary overview, the latest being the Advisory Report on the Counter-Terrorism Legislation Amendment Bill (No 1) of 2015. That’s the Bill to detain 14-year-olds, prompted by the shooting of the Sydney police employee, Mr Chang.

Sensibly, the Committee recommended the inclusion of basic legal rights in the Bill (they had been excluded), such as the right to legal representation (albeit by trusted ‘special advocates), legal professional privilege rules to apply, along with the usual right against ‘self-incrimination’. Parents of apprehended minors are to be notified, and as a kind of oversight of this legislation, a report of the number of ‘orders’ made should be presented annually to parliament. It remains to be seen what, if any, of these basic legal rights will be incorporated into the Bill when it is passed by parliament.

It also remains to be seen if such oversights and supervision of freedom-reducing legislation will ever be incorporated, or will continue to be disregarded, as has been the case with prior counter-terrorism legislation.

What an irony, then, that we have just finished celebrating 800 years of the Magna Carta (“to no one will we deny or delay right or justice”). Square that with arbitrary and indefinite detention.

What can we do? Well, a Bill of Rights would be useful for enshrining basic freedoms and providing a yardstick for the courts to judge freedom-depriving legislation. Beefed-up parliamentary committees of review could alert us, and particularly the politicians, to legislation which infringes international human rights treaties and the rule of law.

But will we take any notice? In fact, do we even care? After all, this anxious ‘protective’ legislation is aimed at controlling the brown-skinned alien ‘other’. But we may care if and when the legislation threatens our own freedoms of speech, movement, association, and right to fair trial. Then it may be too late to protest.

Gillian Triggs is keen that civic education begin early for students about our democracy and the rule of law, “to develop”, she says, “a culture that supports liberties and challenges executive overreach”.

Remember, rights have had to be earned, but can easily be lost. Human Rights and the rule of law are not tradeable privileges.

Tony French is a Melbourne lawyer and a member of the SPC Board.


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