The Australian Government has introduced proposed legislation to amend aspects of the counter terror legal regime. On 30 April 2010, the HRLRC and Amnesty International made a joint submission to the Senate Standing Committee on Legal and Constitutional Affairs‘ inquiry into the two bills, namely the National Security Legislation Amendment Bill 2010 (the NSL Bill) and the Parliamentary Joint Committee on Law Enforcement Bill 2010 (the PJC Bill).
The broad approach of HRLRC and Amnesty is that governments have a duty to protect the rights, lives and safety of people within their territory and 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.
Amnesty and the HRLRC submit that many of Australia’s counter-terror laws as amended by the Bills violate fundamental human rights. For example:
- 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 protecting against racial and religious vilification.
- Some terror-related offences are defined so broadly that the law effectively criminalises thought and speech, such as the ‘praising’ of a terrorist act. These laws operate in a manner that constitutes an impermissible violation of the right to freedom of expression.
- Under changes proposed by the NSL Bill, 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 contain 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.
Finally, the Bills do not address some of the most controversial elements of Australia’s counter-terror laws. Amnesty and the HRLRC call on the Australian Government to immediately take steps to review the human rights implications of the control order and preventative detention order schemes; the excessively broad powers of ASIO to detain and question people, including non-suspects; the offences of associating, supporting and training with a terrorist organisation; and the overly-broad definition of ‘terrorist act’ in the Criminal Code.
