Australia's anti-terrorism laws - Do the laws provide adequate safeguards to individual human rights?

Australia’s tough anti-terrorism laws became a subject of intense controversy when Dr Mohamed Haneef became the first person to be detained without charge under the new laws. On the 2nd of July 2007, Dr Haneef who is an Indian doctor working in the Gold Coast Hospital was arrested based on suspicion of terror-related activities. This resulted in the detention of Haneef for 12 days before being charged. He was later charged for recklessly providing support to a terrorist organisation by giving his UK mobile phone SIM card to a relative who was allegedly involved in failed bombings in the UK. Shortly, after, his charges were dropped.

The purpose of the anti-terrorism laws, is bluntly speaking, to prevent a terrorist attack. Anti-Terrorist laws are intended to facilitate intervention and prevent a potential terrorist from acting by a range of planning, preparatory, funding and association offences. Some have argued that rights to individual liberty, natural justice, due process of law and legal representation may be needed to be modified to strike the balance with national security interest. But where do we draw the line? To what extent must our fundamental human rights and liberties be compromised?

Dr Haneef was held in detention without criminal charge for a period of 12 days. The Anti-Terrorism Act (No. 2) 2005 empowers the police to question terrorist suspects for an extended investigative period of 24 hours. However, the ‘dead time’ provisions of the Crimes Act, which is not subject to a time cap, effectively allows a person to be detained for an indefinite period of time before the questioning begins.

Perhaps the length of Haneef’s detention was justified for various reasons - the need to wait for a New Scotland Yard Interrogator to arrive and also for the need to investigate. However, it is the issue that there is no cap on the detention period that is of concern. According to Dr Ben Saul, director of the Sydney Centre for International and Global Law, detention for Haneef, became unlawfully arbitrary under human-rights law, since it was impossible for him to know how long he would be deprived of liberty. As such, it is essential to have sufficient regard to our fundamental human rights by setting a maximum period of detention.

In the Sydney Morning Herald, Peter Russo, Dr Haneef’s lawyer also expressed his dissatisfaction with the terrorism detention laws. He asserts that it is difficult to envisage that the intention of Parliament when enacting such legislation would have been to allow for the detention of a person for such a long time of 12-days. It follows that, in May 2004, when considering the proposed terrorism laws and the danger of lengthy detention, a representative from the Attorney-General’s Department said: “I have spoken to the Victorians about cases in Victoria concerning reasonable time and what the court has considered to be reasonable time, and the court has considered periods like 16 hours to be reasonable."Given that 12 days is a far stretch from 16 hours, perhaps the current uncapped detention laws should be reviewed.


More importantly, as Christopher Michaelson, who is part of the Strategic and Defence Centre in Australian National University asserted, many of our anti-terrorism laws lack effective judicial and parliamentary review mechanisms to protect our fundamental human rights. He argues that key pieces of anti-terrorism legislation such as the ASIO Amendment Act 2003 (which allows for seven-day detention without charge of non- suspects) do not provide for any meaningful judicial review at all. Other laws such as the Anti- Terrorism Act (No. 2) 2005, allow for judicial review in very limited circumstances. It follows that even where judicial review is possible, Australian courts cannot examine the compatibility of antiterrorism laws with any human rights instrument. This is simply because Australia neither has a constitutional bill of rights nor any special act of parliament protecting the citizen’s basic rights and freedoms. Also, although Australia has been a party to the UN International Covenant on Civil and Political Rights since 1980, it has failed so far to give domestic effect to its international obligations.

When the anti-terrorism amendments were legislated, Prime Minister John Howard said that the legislation was very much influenced by the UK counter terrorism legislation.

Dr Angela Ward, an Australian-born British barrister has told ABC’s Lateline program that the main difference lies in the fact that the UK counter terrorism legislation is subject to review against our Human Rights Act, which implements most of the United Kingdom's international obligations and imports a proportionality test. A judge would be obliged under the Human Rights Act to interpret a certain provision in conformity with the act and if the judge was not able to do so, the judge would have the power to issue a declaration of incompatibility and ask the Parliament to reconsider. As Australian judges do not have the power to directly review legislation against Australia’s international human rights obligations, they will be more disempowered in comparison.

This leaves us with the other option – parliamentary review. According to Michaelson, in the absence of any domestic human rights instrument and in light of limited judicial review, effective parliamentary review of the anti-terrorism laws is all the more vital.

The current Anti- Terrorism Act (No. 2) 2005 does not provide sufficient oversight mechanisms as it does not empower any independent body to monitor the operation of the antiterrorism laws. Therefore, the Government should consider the establishment of an independent body to review the operation, effectiveness and implications of the laws.

These laws, after all, tread uncharted legal paths in Australia and significantly infringe our individual rights and liberties. Perhaps with an independent body, uncapped detention laws would not have been enacted and Haneef would have been granted his fundamental right to a definite detention period.

By: Joanne Khoo (written by me but was unpublished for certain reasons)