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Terrorism Bills By email: [email protected] Dear Secretary Security Legislation Amendment (Terrorism) Bill 2002Suppression of the Financing of Terrorism Bill 2002 Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 Australian Lawyers for Human Rights (ALHR) is a network of Australian lawyers committed to promoting awareness of and adherence to human rights in Australia. We are writing to express our grave concern regarding the proposed security legislation. We apologise for the delay in making this submission but hope that Committee members find these comments useful in their deliberations. We do observe however that the time provided for public consultation was inadequate, with less than two weeks over Easter made available for comment on the legislation. For the many volunteer organisations which constitute Australia’s civil society, this is either prohibitive or results in a poorer quality of analysis than this important topic deserves. While ALHR supports aspects of the legislation, such as better security at airports, most of the legislation attacks fundamental democratic rights and freedoms. This puts at risk the very democratic and legal structures that anti-terrorism measures are intended to protect. The existing criminal law and processes should be used to investigate and prosecute any acts that could sensibly be described as terrorism. There is a provision, for example, for seeking derogations from certain human rights obligations in times of national emergency. If the Bill is enacted, it should at the very least be subject to renewal on a regular basis by a bipartisan committee or HREOC. The review process should give specific consideration to whether the legislation is justified, having regard to the pre-condition under Article 4 of the ICCPR for a “public emergency which threatens the life of a nation”. As Mary Robinson, UN High Commissioner for Human Rights stated recently:
ALHR wishes to make the following specific points: Definition of TerrorismThe definition of ‘terrorist act’ in the Security Legislation Amendment (Terrorism) Bill 2002 and the Suppression of the Financing of Terrorism Bill 2002 is so broad that it could cover a range of political activity that should not be described as "terrorist", and should not attract penalties of life imprisonment. Existing offences under the criminal law such as murder, grievous bodily harm, criminal damage and conspiracy or aiding and abetting can and should be used to prosecute "terrorism".The exemption of industrial action is insufficient. It will not cover a range of industrial action such as effective picketing. The exemption of lawful protest, advocacy and dissent is insufficient. It means that civil disobedience and a range of other political activity could be labelled as terrorist. Banning of OrganisationsIn the same way as the Menzies' Communist Party Dissolution Act, this provision may be unconstitutional. The power to proscribe organisations violates fundamental rights of association and expression, and is not required by the UN Security Council Resolution 1373. The criteria for banning such as "likely to endanger the security or integrity of the Commonwealth or another country" are excessively broad. This law could be used to outlaw political opponents of government policy in Australia and internationally. It is not a sufficient safeguard merely to assert that that would not happen. The offences of "membership" or "assisting" are excessively broad. This law would mean that people even marginally connected to the organisation, such as aid workers rendering humanitarian assistance, could face up to 25 years imprisonment. Review of the Attorney-General's decision under the ADJR Act will not provide any safeguards. The law is so broad in scope that any banning, however unjust, is likely to be lawful. Onus of proof and strict liabilityThe legislation creates a number of strict liability offences that reverse the onus of proof. Strict liability should not apply to offences that carry penalties of imprisonment. Children and Young PeopleChildren and young people could all be subject to these provisions. This violates basic legal principles and the Convention on the Rights of the Child. The special provisions for strip searching children 10 to 18 years old do not adequately address these concerns. Police powers for ASIOASIO should not adopt a police function. The secrecy and accountability provisions in relation to ASIO’s operations are wholly inappropriate for a policing organisation. ASIO’s role should remain restricted to the collection of information. The right to remain silent is a fundamental principle that should not be abrogated. The legislation creates penalties of up to five years imprisonment for not providing information. The proposed legislation allows for indefinite detention without trial, with warrants able to renewed every 48 hours.This is a breach of Australia’s obligations under the International Covenant on Civil and Political Rights No one should be detained or imprisoned unless they are reasonably suspected of committing a crime, charged and a judicial authority refuses them bail. Detention of non-suspects is contrary to fundamental freedoms and principles of criminal justice. It should not be allowed in any circumstances.The AAT is not a judicial body and should not be able to issue warrants for detention. The legislation also allows the Attorney General to determine which members of the Federal Magistrates Court and the AAT can issue warrants, this is not acceptable. No-one should be deprived of the right to a lawyer, regardless of what crime they are suspected of. No-one should be deprived of the right to contact friends or family member when held in detention/p> ALHR members are happy to make their expertise or research available to Committee members if required. Yours Sincerely,
Simon Rice This page last updated 4th May 2004 |