`Counter-Terrorism' Laws: A Threat to Political Freedom, Civil Liberties and Constitutional Rights

By Head, Michael | Melbourne University Law Review, December 2002 | Go to article overview

`Counter-Terrorism' Laws: A Threat to Political Freedom, Civil Liberties and Constitutional Rights


Head, Michael, Melbourne University Law Review


[During 2002, on the pretext of shielding the Australian people from terrorism, the Howard government has introduced legislation that arguably undermines fundamental democratic rights, including freedom of speech and political association and freedom from arbitrary detention. A package of `counter-terrorism' legislation has handed unprecedented powers to the executive government and the intelligence and police agencies. The measures have introduced sweeping definitions of terrorism and treason, both now punishable by life imprisonment, which could outlaw many forms of political protest and industrial action. The legislation contains powers to proscribe organisations, freeze their funds and jail their members for alleged support of `terrorism'. In addition, it reverses the burden of proof for a range of serious offences, effectively requiring defendants to prove their innocence. One part of the legislative package, which would authorise the Australian Security Intelligence Organisation (ASIO) to detain people in police custody without charge and interrogate them incommunicado, without access to legal advice, was referred to a Senate committee by the opposition parties in October 2002. This article examines the purported rationale for the legislation and argues that the laws infringe basic civil liberties, are unrelated or disproportionate to the threat of terrorism and possibly unconstitutional.]

I    Introduction
II   Context and Pretext
III  Terrorism, Treason and Espionage
IV   Power to Outlaw Organisations
V    Detention without Charge
VI   Bipartisan Support
VII  Constitutional Uncertainties
       A  A Lack of Legislative Power
       B  Unlawful Detention and Usurpation of Judicial Power
       C  Breach of Implied Constitutional Rights
VIII Conclusion

I INTRODUCTION

Over the past three years, Prime Minister John Howard's government, supported by the Labor Party opposition, has initiated three major shifts in the political, legal and constitutional framework within which the military, police and security agencies operate. On the pretext of shielding the Australian people from terrorism and protecting the national borders, the government has introduced legislation and undertaken executive action that arguably undermine fundamental democratic rights, including freedom of speech and political association and freedom from arbitrary detention.

In 2000, the Coalition and the Labor parties joined hands to pass military fallout legislation that enables the armed forces to be mobilised against civilian unrest (`domestic violence'), with or without the agreement of a State government. This overturned the traditional principle of relying on police for domestic law enforcement. (1) In 2001, there was bipartisan support for a raft of measures passed in the wake of the Tampa affair (2) to permit the armed forces to repel or detain asylum-seekers and transport them to remote foreign locations--effectively preventing asylum-seekers or any Australian citizen from legally challenging these actions. (3)

In June 2002, the government, again with the support of the Labor party, secured the passage of a raft of five `counter-terrorism' laws, handing unprecedented powers to the executive government and the intelligence and police agencies. (4) As a result of negotiations with Labor, the legislative package was slightly modified in an effort to appease the many critics of the legislation. (5) Despite these amendments, the measures retain their essential anti-democratic features. They introduce sweeping definitions of terrorism and treason, both now punishable by life imprisonment, which could outlaw many forms of political protest and industrial action. (6) The legislation contains powers to ban political parties, freeze their funds and jail their members for alleged support of `terrorism'. (7) In addition, it reverses the burden of proof for a range of serious offences, effectively requiring defendants to prove their innocence.

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