The Human Rights Law Resource Centre and Amnesty have made a Joint Submission to the Federal Attorney-General’s National Security Legislation Discussion Paper, which sets out the measures that the Government proposes to take to respond to a number of recent reviews of counter-terror laws.
Amnesty and the HRLRC acknowledge that governments have a duty to protect the rights, lives and safety of people within their territory. We do not question that perpetrators of violent or terrorist acts should be brought to justice. However the measures put in place to bolster national security, protect lives and prevent terrorist attacks should not unduly infringe on people’s human rights. Too often, debate on counter-terrorism laws and measures presupposes that national security and human rights are inherently in tension or even mutually exclusive. Fundamentally, however, human rights, human security and national security are closely associated and intertwined. The realisation of human rights creates the conditions necessary for human and national security, while national security is a necessary precondition to the realisation of human rights.
Amnesty and the HRLRC welcome the Government’s consultation on its counter-terror law reforms, and submit that some of the reforms proposed in the NSL review are welcome improvements from a human rights perspective. However, many of the laws, even as amended in the NSL review, will continue to unduly infringe upon human rights. For example:
- Some terror-related offences are defined so broadly that the law effectively criminalises thought and speech, such as the ‘praising’ of a terrorist act or a mere threat to do an act that is preparatory to a terrorist act. These laws operate in a manner that constitutes an impermissible violation of freedom of expression.
- Under changes proposed by the NSL review, persons suspected of terrorism offences can be detained for up to 8 days without charge. While this is an improvement on the current laws, which contains no cap on time spent in pre-charge detention, the detention of a person without charge for 8 days is very likely to breach the prohibition against arbitrary detention.
- New search powers allow the police broad discretion to enter private homes without a warrant if they suspect on reasonable grounds that a ‘thing’ is on the premises that is relevant to a terrorist act (even one that has not occurred) and it is necessary to prevent the thing from being used in connection with a terrorist act. The lack of judicial oversight of police action, and the broad terms of the legislative power to enter premises significantly limits the right to privacy.
- Some offences of urging group violence on the basis of race, religion or national origin in the Criminal Code may infringe the right to freedom of speech, whilst at the same time not adequately protect against racial and religious vilification.
Finally, although it covers many issues, the NSL review does not address some of the most controversial elements of Australia’s counter-terror laws, such as the control order and preventative detention order schemes; the excessively broad powers of ASIO to detain and question people, including non-suspects; the process for listing of terrorist organisations and reviewing such listing; and the offence of association with a terrorist organisation.
