Australia’s New Detainee Laws – Human Rights the First Casualty

In Australia, we often hear references to ‘COAG’. The term may register in unconscious recall, but the reality is that few know what it is, nor care. COAG is (usually) a bi-annual talk-fest between the leaders of State and Territory governments and their Federal overlord, The Prime Minister. The Council of Australian Governments (COAG) is a forum for mass esoteric debates between politicians with vested self-interests, who bicker, quarrel and generally disagree on almost everything, then return home satisfied that they have defended their patch while achieving very little.

However, this month’s meeting was very different because unanimous agreement was reached by all leaders. This is a ‘red light flashing’ and bears closer scrutiny. The agreement reached was in relation to new anti-terrorism measures (laws) purporting to be in the name of ‘National Security’, although the changes will allow law enforcement to use these new powers for crimes other than terrorism. The Justice Minister indicated that the new laws would also apply to “serious crimes of any nature.

So National Security was the excuse, not the actual reason.

What was apparent is that no politician wants to risk being labelled ‘soft on terrorism’, so they all blindly agreed to new laws without challenging or scrutinising the potential consequences for individuals who may be wrongfully detained without charge, for up to two weeks including children as young as 10. The new laws are to apply where enforcement agencies deem an investigation relates to terrorism, however as the Justice Minister indicated, the reach is actually far broader.

So what is going on here? A representative of the Australian Federal Police  stated: ‘they (Law Enforcement) don’t have the normal luxury to watch, to wait, to collect evidence before we act’. The Prime Minister commented: “This is a battle that we wage to keep Australians safe every day. Everything we do every hour of every day is focused on keeping Australians safe”.

I’m sensing the prerequisite strategic scare campaign to justify hasty action without due consideration of the consequences, as the leaders demonstrated bipartisan consensus before the meeting even started.  What we witnessed was the usual sales pitch to the Australian people, that ‘National Security’ takes priority over compromising our Civil Liberties, irrespective of the consequences for the innocent.

These are Civil Rights we will lose forever with no apparent ‘checks and balances’ in place for those inevitable innocent victims who will be accidentally detained under these new laws. The rights of ‘a small number of people’ are acceptable collateral, provided it doesn’t happen to you. Here is some of the extraordinary language used by Territory and State leaders in what was a frightening political back-slapping kumbayah event:

  • There is furious agreement between the States
  • States are in violent agreement on this
  • There is unity across all jurisdictions
  • We have made these changes, they are challenging and difficult but they are necessary
  • We all feel that we live in uncertain times
  • All of us are having to reconsider our Civil Rights and compromise on those things
  • We are going to have to curtail the rights and freedoms of a small number of people in order to keep the vast majority of Australians safe
  • I don’t particularly care about the Civil Liberties of terrorists or potential terrorists
  • Notional considerations of Civil Liberties do not trump the very real threat, the very real threat of terror
  • We have probable threats of terror and they cannot be put to one side – it would be unforgivable to think that we could have done more and we chose not to
  • The vast majority of the public wants us to put security first
  • Frankly that talk (Civil Liberties) that is a luxury that might be available to them. It is not available to political leaders in this country
  • We don’t want to leave anything to chance and I want to be the Premier that has a no-regrets policy. I don’t want to look back and think what could I have done differently or more to protect the community
  • This is us at our best

What is interesting is that in 2015 the Attorney General indicated that there may be constitutional impediments where “a detention without charge could be seen for an unreasonable long period, could be seen to be a form of executive detention, therefore a violation of chapter 3 of the Constitution which prevents the executive government from exercising a judicial power”.

Following COAG, the Prime Minister stated that “everyone’s agreed to us making these changes”. When asked about the constitutional problems with that in the past, he said “well… well… clearly we’ve satisfied ourselves that this… this will comply with the Constitution”.

It feels like they’ve done a job on us. Have we just witnessed the Federal and State governments somehow circumnavigate the Constitution or just The Attorney General?

Don’t get me wrong, I accept that we may need to change laws and as a result forego some civil liberties, but only with conditional provisions to protect the Human Rights of innocents. What happens if you are the innocent individual detained for two weeks without charge, all because you were in the wrong place at the wrong time or look similar to the wrong person, or you are arrested because of incompetent bureaucrats, corruption, mistaken identity, identity theft or fraud?

There are inhuman consequences: a loss of Human Rights for those individuals, who through no fault of their own find themselves the innocent victim of these new laws, without any protection, recourse, reparation or compensation. Now you may ask what are the chances of being detained in Australia ‘without charge’ in 2017. I’m not trying to evoke the memory of European fascists in 1930/40s, but it has happened in Australia before. See The Haneef affair.

Just imagine being in the shoes of Doctor Haneef who in 2007 was falsely accused by Australian authorities of aiding terrorists, arrested and detained without charge. Some three years later he was awarded defamation compensation by the Australian Government for an undisclosed ‘substantial amount’. Do ‘innocent victims’ relinquish their rights for compensation under these new laws, as Government indemnify itself against breaches of basic Human Rights?

As a society we need to resist the slide into a totalitarian State where police are given ‘shoot to kill’ powers to fight terrorism, at the same time as frontline police seek ‘shoot-to-kill’ immunity to protect officers from recrimination. It will be ‘open season’, potentially adding a new dimension of consternation for those who already feel they are targets of racial profiling by Police.

We need to start challenging our political leaders and ask what are the real reasons for this wide-ranging draconian legislation. Why the ‘fear mongering theatre’ masquerading as an anti-terrorism initiative when its consequences have ramifications well beyond the stated purpose. Why do we need to deny justice for any of our citizenship when they are innocent? Why is it reasonable that they should forgo their rights and freedoms and the safeguard of ‘due process’?

How wrong are State and Federal Law Enforcement agencies getting it, if we need to change the law to indemnify the Government against the consequences of their actions? The spirit of a country is reflected in its National Anthem. Australians sing: ‘let us rejoice, For we are young and free. I’d question whether children as young as 10, detained without charge are free!

Advance Australia……FAIR?

19 October 2017

“Success does not consist in never making mistakes but in never making the same one a second time” – George Bernard Shaw.

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Author: Gooriara

An old Australian bloke... sharing a few thoughts.

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