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ICJ Australia denounces new counter-terrorism laws.

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The International Commission of Jurists, founded in Berlin in 1952, is an international non-governmental organisation with consultative status to the United Nations, UNESCO, the Council of Europe, and the Organisation of African Unity. Its headquarters are in Geneva, with autonomous national sections and affiliates around the world. The International Commission of Jurists (Australian Section) was founded in 1958.

MEDIA RELEASE - 17 October 2005

ICJ Australia Denounces New Counter-Terrorism Laws

ICJ Australia has denounced the Australian government’s Anti-Terrorism Bill 2005 as an overly-aggressive encroachment on precious liberal, democratic values that go to the heart of the Australian identity. ICJ Australia acknowledges the need for laws that tackle the increased threat of terrorism, but says that these laws go too far. The Geneva-based rule of law organisation also doubts that the new laws will be effective in reducing the risk of terrorist attacks in Australia. The alienation of certain minorities through these laws may in fact prove counterproductive in the long run.

President of ICJ Australia, The Hon Mr John Dowd AO QC, said today, “Much of this legislation abandons the most fundamental principles one would expect to be inviolable in a liberal democratic society. The protection of individual liberty, the freedom of thought and speech, the absence of guilt by association, and the right to quiet enjoyment of life are the keystones of our democracy.”

Mr Dowd also said, “These are not just exaggerated civil libertarian platitudes being trotted out for the sake of dissent. These laws create imminent potential for abuse, and have such wide application that they will inevitably ensnare innocents in their net. Let there be no mistake. The Australian people are facing a critical fork in the road, and our Federal and State governments are about to take us down the wrong path from which there may be no return.”

Mr Dowd went on to say, “The indecent haste with which the government seeks to pass these laws through Parliament’s systems of review, including the Senate, also strikes at the heart of our Westminster system of democracy. What does the government have to fear from community consultation? Surely that is what democracy is all about. Our complaints are not just about minor drafting issues. They are serious objections to substantive policy matters.”

“Control orders based on mere suspicion rather than any finding of guilt by a court, where a 16 year old person can be fitted with a tracking device, can be placed under house arrest, can be banned from talking to people, can be prevented from departing Australia, should toll alarm bells for all of us. The creation of sedition offences where one can go to jail for up to seven years if they ‘urge disaffection against the government’ is anathema to basic democratic principles. The removal of solicitor and client confidentiality is another radical step that is entirely unwarranted. Further, fourteen days of preventative detention without charge, partly for the purposes of ASIO interrogation of people not necessarily suspected of offences, but who might unwittingly possess information, should be repugnant to all fair-minded Australians. The scope is far too wide. Detainees are not even allowed to tell their spouse or friend where they are when being detained. They have to say ‘Trust me. I'm safe but I can't contact you for two weeks’. That is going to hurt families.” said Mr Dowd.



ICJ Australia says that the proposed laws are the kind that might be expected if the country was in a state of emergency. Many of the proposals represent a serious departure from the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR) to which Australia is a party.

Under the ICCPR, Australia is only entitled to derogate from basic civil and political rights after it has declared a state of emergency in accordance with Article 4. The government has not declared a state of emergency and appears to have no intention of doing so. ICJ Australia therefore calls on the Australian government to abandon these legislative proposals that breach fundamental rights, and demonstrate its commitment to the rule of law by conforming to the procedures established by Article 4 of the Covenant, and with the Covenant generally.

ICJ Australia does not accept that the claimed checks and balances address their concerns. “It is not enough to say that a Judge has to be consulted before such orders would be made. A Judge is bound to apply legislation on its terms, and when the laws are bad laws, Judges are compelled to implement them. Recently retired High Court Justice McHugh eloquently articulated that dilemma just last week.” said Mr Dowd.

The sunset clause which provides that the laws would remain in force for ten years is no protection. Five years would enable examination as to the effectiveness and consequences of the laws with the benefit of experience. ICJ Australia has the view that if the laws are passed, a ten year period of application will only entrench a climate of fear and division in the long term, whereby certain minorities feel alienated, and the next generation of Australians will grow up in a country that barely resembles the one we have always known. “In a democracy, the people must have more control over the extent to which, and the length of time during which, their rights may be infringed. International law does not permit violations of basic rights to persist longer than is strictly necessary in circumstances of emergency. Domestic laws should be held to the same standard.” said Mr Dowd.

“Terrorists cannot claim victory in their attempts to change the world, unless the world's response to their crimes in itself effects that change. Without that, all they can do is claim responsibility for a series of monstrous crimes. If these laws are passed, however, Australia will have surrendered its society, its way of life. If these laws are passed, then yes, the world will have changed for Australians. We do not have to go that far. We should pause for a moment, slow the snowball, and consider the full implications of what we are about to do. Protection of our societal values and way of life is the objective. We are about to kick an own goal.” said Mr Dowd.

Prior to the release of the draft Bill, ICJ Australia published a paper dealing with its specific concerns over the legislation package. A full report into the draft Bills will be released in days to come with a view to submission to the government's accelerated Senate review of the legislation.

For further information, please contact The Hon Mr John Dowd AO QC, President, ICJ Australia; or in the alternative, Mr Steve Mark, Chairperson, ICJ Australia; or Mr Nicholas McNally, Treasurer, ICJ Australia.

17 October 2005