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7.30 report

Tuesday 25 October 2005

Academics are concerned that proposed anti-terrorism legislation is unconstitutional

KERRY O'BRIEN: Welcome to the program. The Government 's plans for a swift and easy passage of its terror legislation may have hit a significant legal hurdle. In fact, the Queensland Solicitor-General says the laws may even be unconstitutional. More than a few constitutional lawyers agree that specifically asking judges and magistrates to help police detain suspects who may have committed no offence would challenge the whole notion of the separation of powers and would be open to a High Court challenge. The Prime Minister has today agreed to a request from the Queensland Premier for a meeting between Commonwealth and state legal officers to try to find a way through the dilemma. Political editor Michael Brissenden reports.  

 

WITNESS: I can see in front of me a red double-decker bus...  

 

MICHAEL BRISSENDEN: The aftershocks of the London bombings have been felt far and wide. From London to Canberra, this was a terrorist act that blew apart many of our long-held legal and law enforcement certainties. In both countries governments have reacted with a raft of legislative changes and, in both countries, political aspirations have hit significant hurdles. In Britain, it's been the Human Rights Act. Here in Australia, it seems it might be the Constitution itself.  

 

PROFESSOR GREG CRAVEN, CONSTITUTIONAL LAW, CURTIN UNIVERSITY: There are differences between the UK and Australia in a number of varying directions. One is that the UK is subject to certain European-derived rights covenants that we are not, but in the other direction the UK is not subject to a constitutional doctrine of separation of powers and indeed judicial power as we are.  

 

MICHAEL BRISSENDEN: Our government is obviously keen to fast track its legislative response to terrorism. The new ant-terrorism bill is due to be introduced to Parliament next week and unlike the ASIO bill of 2002, that was the subject of three parliamentary inquiries and was dissected and scrutinised for 12 months. These changes will be subjected to a few days arbitrary inquiry by a Senate Committee before they are voted into law. The concern about the impact on human rights and freedom of expression have been widely canvassed in the past few weeks, but even putting those to one side, there are now serious legal concerns emerging as well.  

 

PETER BEATTIE, QUEENSLAND PREMIER: We're not interested in causing problems for anyone, but my concern about this is very simple - to make sure that when the laws are passed they are enforceable and binding. The last thing I would want to see is a constitutional challenge.  

 

MICHAEL BRISSENDEN: Peter Beattie, one of the premiers most eager to see tougher anti-terror laws, seems a little surprised that the proposed legislation could be unconstitutional. But constitutional lawyers say they've been expecting just such a problem to surface.  

 

PROFESSOR GREG CRAVEN: Because it would effectively be a challenge based on chapter 3 of the Constitution that there had been a breach of the basic judicial suppositions of that chapter. The judges could not be required to act in a way that was incompatible with their office as judges and one has to remember that this is in fact a High Court; that if it is obsessed with anything, it's obsessed with precisely that chapter of the Constitution - chapter 3 in judicial power.  

 

MICHAEL BRISSENDEN: Essentially, the preventive detention and control orders contained in the new legislation would be asking judges and magistrates to directly aid the police in detaining people who may have committed no offence. This, says Greg Craven, would bring the courts into disrepute and inevitably lead to a High Court challenge. The Prime Minister, though, says his advice is that the proposed laws are constitutional and that no-one in the Government's legal team has ever raised any doubts.  

 

JOHN HOWARD, PRIME MINISTER: Lawyers often have different opinions as to what the law means and there's nothing new for a group of lawyers to have a range of views about the validity or otherwise of an approach, but speaking for the Commonwealth and based on the advice I have received from the Crown law authorities at a Commonwealth level, these laws are quite constitutional. If Mr Beattie or anybody else has queries, he wants to talk to me about it, well I'm only as far as way as the telephone.  

 

PROFESSOR GREG CRAVEN: The Commonwealth is fond of believing its legal advice just as the State's fond of believing its legal advice, but at the end of the day the only legal advice that matters is what the High Court says at the end of the case.  

 

MICHAEL BRISSENDEN: The point is, the States and the Commonwealth both want to work this out. Few politicians want to publicly appear to be opposed to tougher terror laws. But outside the constitutional difficulties, there is an argument brewing about just how tough they need to be. The premiers and the Commonwealth appear to be in broad agreement on most of the legislative proposals. The only real opposition to the preventive detention and control orders has been coming from within the Government's own backbench and from former prime ministers and retired judges. Where the premiers and the Prime Minister do seem the part, though, is on the so called shoot-to-kill provisions.  

 

JOHN HOWARD: You would get the impression from some of the talk over the last few days that it's something new I'm trying to bring in - shock, horror, John Howard is bringing in something that will enable people to shoot to kill. That has been...or the use of lethal force in certain circumstances has been part of the law of the States of Australia now for decades. In fact, ever since police forces were established they've had the right to take action to protect themselves and protect the public. After all, that's what police are meant to do, isn't it?  

 

MICHAEL BRISSENDEN: Well, yes, but even former policemen are asking why any new laws would be needed if they are simply replicating provisions that already exist.  

 

Dr MARK CRAIG, QUEENSLAND UNIVERSITY OF TECHNOLOGY: Well, I can't see why we would need to change the law at all because the powers are there. One could only envisage that it is some sort of politicisation of this particular issue in light of the fallout of the death in London.  

 

MICHAEL BRISSENDEN: Mark Craig is a former Queensland copper and now a doctor of criminology. He says it is true under current laws if a policeman judges there's a clear and present threat, such as a terrorist threatening to blow himself up, he can shoot to kill, provided there is no other option. He says what the new legislation would do is take away some of the responsibility of policemen to justify their actions and allow the Government to better manage the fallout from any mistakes. The shooting of an innocent man in the London Underground just after the London bombings is often cited as a case in point.  

 

Dr MARK CRAIG: It's a political move, as I said, to manage and contain fallout in the event that some unfortunate incident happens and someone loses their life and it turns out to be a mistake there is an out for the police, an out for the Government.  

 

MICHAEL BRISSENDEN: Dr Craig also argues the new laws, as proposed in the draft legislation that's now in the public domain, would put more pressure on police to make judgements they may not be properly equipped to make and allow them to act on suspicion alone.  

 

Dr MARK CRAIG: They're going to be in situations where they are uninformed. Not all police understand anything about terrorism. And they are asked to make these kind of very, very split-second decisions that could cost lives and it's really, really dangerous.  

 

MICHAEL BRISSENDEN: The Government, though, says the changes it is proposing in this area will actually give police more certainty and the circumstances surrounding the use of force will be more clearly defined. But the Government also wants to get these bills through and may be prepared to compromise to do so. The new so-called shoot-to-kill provisions could even be dropped altogether and State and Federal Police will have to abide by common law. It is a somewhat complicated and circular argument for sure, but perhaps that's just one more reason for more time to be given for public scrutiny and debate than the Government seems, at this stage, prepared to allow.