CommentaryJURIST Special Guest Columnist Jon Stanhope, Chief Minister of the Australian Capital Territory (ACT) and recently the sole dissenter among Australian state and territorial leaders against strict new anti-terrorism legislation proposed by Australian Prime Minister John Howard, says the anti-terror bill threatens to erode fundamental rights and liberties and even undermines what it means for Australia to be a society at peace…
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In Australia, as elsewhere, governments are wrestling with the challenge of protecting their communities against terrorism. One of the peculiarities of this challenge is that with each step we take to strengthen our security response we edge closer to eroding the human rights and liberties that we keep insisting are the targets of the terrorists themselves. Unwittingly, we may be doing the work of the terrorists for them. Unconsciously, and in the absence of a declaration of war, we are altering our notions of what encroachments on our civil liberties we will tolerate in peacetime. We are changing our very definition of peace.
In Australia, there is no national bill of rights against which proposed new anti-terrorism laws can be held up for scrutiny or measurement. The Australian Capital Territory, alone of Australia’s six States and two Territories, has a bill of rights — the ACT Human Rights Act. Essentially, it incorporates into ACT law the rights set out in the International Covenant on Civil and Political Rights.
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Topic: At the time of writing, Australia’s new Anti-Terrorism Bill is before our Federal Parliament. Given that the Government has a majority in the Senate, or Upper House, its passage into law may be something of a formality. But its journey to the Parliament was perhaps not as smooth as the Prime Minister, John Howard, might have liked.
On September 27, the Prime Minister asked the leaders of Australia’s six states and two territories to agree to a package of new anti-terrorism measures. He proposed preventive detention of up to 14 days, and control orders — in which individuals who have trained with terrorist organisations or are otherwise regarded with suspicion could have restrictions placed on their movement, their employment, their abode, their associations and their recreational pursuits (up to and including house arrest or electronic monitoring) for up to a year.
The laws that would come out of this meeting were of a peculiar kind. Because of the nature of the Australian Federation and the constitution, the Federal Government could not pass this package without the agreement of a majority of the States. The laws depend on State powers being referred to the Commonwealth. That is why the States and Territories were asked to sign off on what would normally be seen as draft Commonwealth legislation.
I went to that meeting with grave concerns about the impact of these measures on human rights. The Prime Minister, however, gave assurances that the laws would be proportionate, would involve proper judicial review, and would meet all of Australia’s obligations under the International Covenant on Civil and Political Rights. I agreed to the package.
The draft laws were distributed to the Premiers and Chief Ministers, with a 28 October deadline for sign-off. From the outset, I was determined that I would not put my signature to something without consulting as widely as I believed necessary, and without ensuring that the Prime Minister’s assurances had been delivered upon. I also believed that on a matter of such seriousness, going directly to the rule of law and human rights, I should solicit the opinions of my constituents — the people of the ACT, the ordinary Australians on whose behalf the State powers were being referred, the people these laws would directly affect. On Friday October 14 I posted the first draft of the new laws on my website.
The laws are of a kind never before contemplated by this country in peacetime. They broaden the definition of a terrorist organisation and create new offences of sedition. In the earliest draft, detainees were accorded no right to know the reasons for that detention, no right to inform family of their predicament and no appeal on the merits. Later versions of the draft softened some of these harsh provisions, though not to the satisfaction of all critics.
The lack of a national bill of rights has been felt acutely during the debate over these laws. As Chief Minister of the Australian Capital Territory — home to Australia’s capital city, Canberra — I felt it was vital to put human rights on the agenda in this national debate. Mine has been a lonely position, at least among my political peers. What agitation there has been in relation to the human-rights implications of the proposed anti-terrorism laws has mostly come from legal academics and civil libertarians. Politicians have not only been generally silent, they have been openly dismissive of the need to consider human rights. Their attitude has been summed up in the oft-repeated remark, “the only meaningful human right is the right not to be blown up by a terrorist.”
Once the laws were in the public domain, I commissioned expert opinions on the draft from a number of sources. Within days I had received a detailed analysis of the draft from a group of prominent Australian legal academics and specialists in international law — Professor Hilary Charlesworth and Gabrielle McKinnon, from the Australian National University, and Professor Andrew Byrne, from the University of NSW. They expressed grave concerns about the extent to which the draft complied with Australia’s human-rights obligations, in areas such as the right to liberty and the right to a fair trial. I posted their opinion on my website, alongside the draft.
I next received advice from the ACT Director of Public Prosecutions, Richard Refshauge, SC, alerting me to potential problems with the judicial-review aspects of the Bill. He asked how it was possible to have review on the merits if detainees were not told the reasons for their detention. He also queried provisions relating to communication between lawyers and detainees. His opinion too went up on my website.
Advice from the ACT Human Rights Commissioner, Dr Helen Watchirs, added to my disquiet in relation to the human-rights protections of the Bill, while an analysis from Stephen Gageler, SC, added to emerg
ing eleventh-hour concerns that there were serious constitutional problems with the draft laws, amounting to a breach of the separation of powers between the judiciary and the executive.
The final formal piece of advice I received was from two prominent criminal and human-rights barristers, Lex Lasry, QC, and Kate Eastman, who identified further gaps in the human-rights protections afforded by the Bill.
All these analyses can be found at www.chiefminister.act.gov.au.
The posting of the draft Bill also generated a large number of opinion pieces and scholarly analyses in Australian newspapers and journals and prompted the commissioning of legal opinions by others. For example, the national broadcaster, the Australian Broadcasting Commission, solicited expert advice on whether, under the proposed sedition laws, public statements made by prominent people including journalist John Pilger over the course of the terrorism debate could have resulted in charges being laid (the answer was ‘yes’).
Concerns were also raised by a number of State Solicitors-General regarding the constitutionality of some of the provisions of the law and arguing that the legislation breached the separation of powers by requiring the judiciary to perform executive functions. Again, some amendments were made to lessen, though not eliminate, the risk of a constitutional challenge.
The Bill was ultimately signed off by every State and Territory except the ACT, with a number of last-minute concessions by the Commonwealth that ameliorated some of its worst excesses. The extent of the public debate over these laws has, I believe, played an important role in bringing those concessions about. Without the voices of dissent that arose once the detail of the legislation became known, the attempt to erode human rights — the rights enshrined in international law after the grave lessons of the Second World War — under Australian law might not have received the attention it deserved.
Sadly, at the end of the process, I was still an essentially lone voice among my peers. There have been concessions, but they do not reach the heart of the issue: that while we rightly proclaim the need to protect our people from terrorism, the threat our efforts may pose to those same people’s human rights has been too often pushed aside. As long as we allow this we will, I believe, continue to seriously misconstrue the very notion of peace.
Jon Stanhope is Chief Minister of the Australian Capital Territory
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