In the aftermath of the 9/11 attacks on the USA, Australia hastily reacted by enacting a multitude of counter-terrorism laws. These laws were ostensibly intended to bolster national security and deter acts of terrorism. However, the unintended consequences of those laws pose significant threats to fundamental legal rights, including the right to a fair trial and the protection of habeas corpus.
Under the Howard government, Australia witnessed the passing of a new counterterrorism law approximately every 6-7 weeks. In total, 92 pieces of counterterrorism legislation were rushed through Parliament without the usual scrutiny.
The legislation has given rise to unprecedented legal powers, including: restrictions on freedom of speech through sedition offences; detention and questioning of Australians not suspected of any crime, for up to a week; control orders enabling house arrest for up to a year; detention without charge or trial for up to 14 days; and warrantless searches of private property by police.
The absence of comprehensive human rights safeguards, such as a bill of rights, provided fertile ground for the enactment of especially disproportionate laws in Australia. Hence, our ostensible “anti-terrorism” laws may present far greater threat to the civil liberties of Australians than anything Americans face from the USA’s infamous Patriot Act.
What is habeas corpus?
Habeas corpus is a fundamental right that protects individuals from arbitrary or unlawful detention by the government. It is the right to challenge the legal justification of any detention before a court of law. If the judge finds the detention to be unlawful, the individual must be released.
The historical roots of habeas corpus can be traced back to 13th Century medieval England; a period where the Monarchy and Government had powers to detain individuals without clear legal justification, which predictably resulted in frequent arbitrary and indefinite detentions.
A Shift in Legal Paradigm
The War on Terror marked a significant shift in the legal landscape. Traditional criminal law focused on punishing individuals for actual crimes, based on material evidence. The new focus is on preventing potential crimes, based on undisclosed suspicions.
Preventative detention, for instance, allows the AFP to question anybody without charge, simply by deeming the person a ‘terrorism suspect’. The practice of ‘preventative detention’ contravenes key principles of international law, including Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR).
So, while the principle of habeas corpus exists on paper in Australia, its strength and spirit are dead.
So, how does this affect we non-terrorists?
The Australian Government has armed itself with extraordinary powers that have reshaped the very essence of justice. The Government and its agents gave themselves the ability to search without warrant, detain without charge, and declare organisations as threats to national security without substantive proof. If that was not scary enough, what remains deeply concerning is the ambiguity surrounding the definitions of ‘terrorism’ and ‘threat to national security,’.
Under these legislative initiatives, political labels can be affixed to activities that, if genuinely criminal, would have fallen under the purview of existing criminal laws. These criminal laws come with vital safeguards that ensure individuals have the right to receive a fair trial and are presumed innocent until proven guilty beyond a reasonable doubt. Counter-terrorism laws erode these fundamental legal protections, placing the burden of proof on the accused, effectively reversing the principle of “innocent until proven guilty.”
Recent global events serve as stark reminders of the dangers associated with politicising alleged criminal activities. The Canadian trucker freedom convoy was portrayed by the media and the Canadian government as an occupation. The January 6th protests in the USA were labelled an insurrection, while freedom protests in Australia were stigmatised as right-wing extremism. Such hasty and politically charged characterisations only underscore the perilous implications of these counter-terrorism laws and their potential misuse.
At the core of this issue lies the power vested in the government to declare individuals or groups as threats to national security, bypassing cherished legal safeguards, such as habeas corpus, and unleashing an arsenal of undemocratic laws upon those accused. This unchecked authority fundamentally challenges the principles upon which our democratic society stands.
It is worth considering the words of Lord Hoffman when he delivered his dissenting opinion on counter-terrorism legislation in the United Kingdom: “The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these.” These words should resonate with every citizen, as they highlight the dire need for a careful and considered re-evaluation of the balance between national security imperatives and the preservation of our fundamental legal rights, ensuring that justice, transparency, and accountability are not casualties in the fight against terrorism.