Following article posted by Amnesty International Australia.
Probably because under Howard’s laws, and anyone that speaks against the PM, Australia or any of his allies may go missing for an indefinite period.
Australia: Draconian new laws undermine the values they are supposed to protect
- RRA 008/05 28 September 2005
The Prime Minister announced further anti-terrorism laws in a media release on 8 September 2005, elements of which require the cooperation of states – in particular the extension of preventative detention orders to 14 days.
A draft of the proposed legislation was published by the ACT Chief Minister, Jon Stanhope MLA, on 14 October 2005. These new laws contain some serious inroads into longstanding human rights protections, particularly in relation to the new regimes of control orders and preventative detention orders.
Amnesty International acknowledges the duty of governments to keep their citizens safe – but not at the expense of fundamental freedoms and basic human rights.
These new measures will live with the Australian people for a decade before the ‘expiry date’ of these provisions. While mention has been made of a 5 year review of the new laws, this promise is meaningless without any provision for who will review the laws, and what form that review will take.
Control Orders – House Arrest by any other name
Control orders impose very serious restrictions on the liberty of a person – who has not actually committed a criminal act – for up to 12 months and allow for any or all of the following:
- Restricting or prohibiting a person from going to a particular place and/or requiring that the person remain in a particular place at a particular time and/or day;
- Prohibiting a person from leaving Australia;
- Prohibiting a person from contacting or communicating with a particular person/s;
- Prohibiting a person working in particular jobs or carrying out specific activities, and/or possessing or using otherwise lawful items or substances;
- Requiring a person to wear a tracking device; and/or
- Prohibiting the use of telephones, internet and other like technologies.
The orders can be issued if it is believed that the restrictions will substantially assist in preventing a terrorist act or if the person has provided training or received training from a terrorist organisation. There is no limit to the number of times the order can be renewed.
Under the proposed laws a person and his or her lawyer are denied access to the underlying information for the order being placed on them in the first place. These restrictions hinder the ability of a court to meaningfully review whether the orders have been validly used and further compounds the potential violation of a persons liberty under the laws.
Young people of 16 years and over are subject to similar restrictions, but only for three months. Once again, this period can be renewed indefinitely – making the limit of 3 months almost tokenistic.
Preventative Detention Orders – detention without charge. Unprecedented in Australian law, prohibited by international law
These orders create a scenario never before seen in Australia – that is, detention without charge potentially for 14 days. This is a serious inroad into fundamental human rights, such as the right to liberty, to be free from arbitrary detention and to the presumption of innocence.
One of the fundamental safeguards against innocent people being wrongly detained is the requirement that the state can only remove a person’s liberty if they are suspected of committing, or have been found by a court to have committed, a crime. That is why our Constitution only allows courts to impose criminal detention on a person after hearing both reasons for and against that detention in a trial.
Under the proposed new laws a person can be detained if the Australian Federal Police (AFP) suspect that that person will engage in a terrorist act, possesses a thing that is connected with a terrorist act, or if the person has done, or will do, an act in preparation for a terrorist act. The terrorist act must be imminent, and expected to occur in the next 14 days or have occurred in the last 28 days.
The new preventative detention regime sets out two types of preventative detention: initial preventative detention; and continued preventative detention.
Under the proposed changes it will be very hard to get a court to review the orders on the facts as, like in the case of the control orders, neither the person under the order nor his or her lawyer has access to the reasons the orders were sought by AFP in the first place.
Young people of 16 years and over can be subject to these orders as well, in a limited way. A child must be able to access a parent or guardian.
Secret detention under preventative detention orders
Secrecy is also a hallmark of this regime. A person detained can contact a family member, employer, flatmate, business partner or employee but can only say that he or she is ‘safe, but unable to be contacted for the time being’. No further information is allowed to be given.
The detained person’s lawyer will have access to the actual preventative detention order. While the order is in force they will go to jail if they disclose that:
- an order has been made in respect of their client; or
- their client has been detained; or
- any information given by their client to them
Similar restrictions apply to guardians or parents of children16 – 18 years of age. As a child is able to have access to a parent or guardian for 2 hours a day, the parent or guardian will therefore be aware of both the order and the detention. If a guardian discloses the fact of the order or detention, they may go to jail for 5 years as well.
Role of lawyers undermined, presumption of innocence eroded
The proposed laws require the monitoring of all communication between people held under an order and their lawyers, and in some cases restrict the choice of lawyer. These restrictions impact negatively on the right to a defence when the presumption of innocence has already been undermined because the person is being detained without charge.
No human rights protection
It is important to not that unlike the United Kingdom, the United States of America and Canada, Australia does not have a Bill of Rights to ensure that governments can be held accountable for restrictions placed on, or abuse of, hard won individual rights and freedoms.
AIA acknowledges the duty governments have in ensuring the safety of their citizens; however we believe that fundamental rights and freedoms do not need to be traded off in pursuit of enhancing our security.
Please write politely worded letters to both the Prime Minister and Leader of the Opposition. Contact details are listed below. Please raise the following concerns:
- Preventative detention orders create a regime of detention without charge or trial, which could amount to arbitrary detention. In addition, the prohibition against a detainee telling their loved ones, employer or employee or housemates of their whereabouts or reason for their sudden disappearance – other than to say ‘I am safe but not able to be contacted for the time being’ – amounts to secret detention.
- Control orders of 12 months or more for adults and 3 months or more for 16-18 year olds impose severe restrictions on the right to liberty and are house arrest by any other name.
- There are inadequate provisions for a proper review of control and preventative detention orders creating serious encroachments into people’s rights by courts.
- The current proposals will be valid for 10 years. This is far too long for provisions which infringe human rights to be in our law. A shorter sunset clause would ensure that anti-terrorism laws remain current to meet changing security needs. Furthermore the proposed 5 year review is meaningless without guaranteeing its form in legislation.
- The Hon John Howard MP Prime Minister Parliament House CANBERRA ACT 2600 Salutation: Dear Prime Minister
- The Hon Kim Beazley MP Leader of the Opposition Parliament House CANBERRA ACT 2600 Salutation: Dear Mr Beazley