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Academic believes proposed anti-terror laws breach five of the six human rights guarantees given by the Prime Minister.

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Wednesday 19 October 2005

Academic believes proposed anti-terror laws breach five of the six human rights guarantees given by the Prime Minister


MARK COLVIN: The ACT Chief Minister Jon Stanhope has presented the Federal Government with another problem over the proposed anti-terror laws. 


First, Mr Stanhope annoyed the government by posting the draft laws on the internet. Now, he has posted a report from three legal experts who've examined the laws and found that they breach human rights law. 


Mr Stanhope has referred the report to his department, but he hasn't yet said whether he will withdraw his earlier support for the anti-terror laws. 


Louise Yaxley reports. 


LOUISE YAXLEY: Jon Stanhope asked three experts in human rights and international law to look at the proposed legislation he received last week. 


Hilary Charlesworth, from the Australian National University, the Professor of International Law at the University of New South Wales, Andrew Byrnes, and Gabrielle McKinnon, also from the ANU, have given him a 12 page report. 


Professor Charlesworth says they found the laws would breach five of the six human rights guarantees the Prime Minister gave at last month's meeting, where Premiers and Chief Ministers agreed to a broad outline of the laws. 


HILARY CHARLESWORTH: It's very clear, for example, that I think they're violations of the right to liberty and security of the person.  


What they effectively allow is an unaccountable process of detaining people about whom the Australian Federal Police have suspicions, but not providing any real or meaningful form of judicial review as the Prime Minister promised that they would. 


Under the preventative detention order system, it's possible at least to get an initial detention order. The application has to be made by the Australia Federal Police and the issuing authority for these initial detention orders is also the Australian Federal Police.  


So, all you have to do to get one of these draconian orders is for one member of the Australian Federal Police to convince another one that there is evidence that this person should be so detained. 


Now it seems to me, in a democratic society, that simply doesn't contain enough safeguards against the possibility of abuse. 


In the case of the continued detention orders, the magistrate or judge who makes those orders only is allowed to hear from the Australian Federal Police. In other words, the person about whom the detention order is being made does not get a chance to put their side of the story: "You've got a mistaken person", "It wasn't me", "You've misunderstood", or so on.  


There's no possibility of the person who's subject to a quite draconian order to ever give their side of the story. And that seems to me to contradict very basic principles about the rule of law, that our politicians assure us underpin our society. 


LOUISE YAXLEY: Professor Charlesworth says Mr Stanhope should call on the Prime Minister to make good his guarantees. 


HILARY CHARLESWORTH: The Chief Minister has got a very good argument that those guarantees haven't been delivered on, so I think he needs to make sure that they are properly delivered on.  


If the Commonwealth Government doesn't accede to that request I think that the Australian Capital Territory is in the unusual position in Australia of actually having its own Bill of Rights, and, I think, I would advise the Chief Minister to ensure that ACT legislation, that mirrors the federal legislation, be made consistent with international human rights guarantees, which would effectively make it quite a different set of laws to the one that we have the draft of. 


LOUISE YAXLEY: Jon Stanhope hasn't yet said how he'll respond to this report. His spokeswoman says he's asked his department for advice. 


The Liberal backbencher Petro Georgiou has also expressed concern about the proposed legislation. He says the laws don't go far enough to hold security agencies to account. He likes the United Kingdom system where anti-terror laws are reviewed by an independent person. 


Mr Georgiou supports Australia having an independent statutory monitor reporting regularly to Parliament. 


But this afternoon, the Prime Minister said he's not so keen. 


JOHN HOWARD: I'm not attracted to establishing yet another statutory authority. I think we have too many statutory authorities in this country. But I am quite happy to talk to my colleagues about any ideas they might have but we're not going to change the substance of the legislation. 


LOUISE YAXLEY: Mr Howard did leave the way open for some minor changes, but he won't be making major alterations in response to the criticisms from Petro Georgiou. 


JOHN HOWARD: He was expressing some concerns about how the legislation might operate. I understand that. This is unusual legislation for an unusual situation. 


We already have, of course, a role for the Ombudsman in relation to police behaviour. We have regular reporting to the Parliament on an annual basis by the Attorney-General.  


And I'll continue to talk to all of my colleagues, but I can only repeat that this legislation will reflect the agreement made at the COAG meeting: no more, no less. It is necessary legislation, and it's legislation that I believe, after study and discussion and consideration, will receive the support of the Parliament. 


MARK COLVIN: The Prime Minister ending Louise Yaxley's report.