Lucas Heights Overreactor

Ben Saul, a lecturer in the Faculty of Law at the University of NSW, calls Howard's terror laws "an exercise in overreaction" and calls for a bill of rights in a Comment in today's Herald:

"WITH dozens of French cities ablaze in riots over recent weeks, the French Government's response has been remarkably moderate, initially imposing a 12-day state of emergency, which has now been extended to three months.

The contrast with the Australian Government's reaction to threats the country faces is profound. The anti-terrorism bill being considered by a Senate committee this week would impose extensive and invasive new restrictions for 10 years.

France says three months of exceptional powers is sufficient to combat violent unrest across an entire country which has resulted in hundreds of millions of dollars of property damage, serious injuries to police and others, and almost 3000 arrests.

By contrast, the Australian Government wants 10 years of new powers when no violence has occurred, and only a handful of arrests have been made in relation to a small number of suspected preparatory terrorist activities.

The French President, Jacques Chirac, said the emergency powers were a temporary measure that would be used only when necessary. He said this because in most European countries, including Britain, human rights laws require governments to justify exceptional powers as strictly necessary and proportionate to particular security threats.

The Australian Government has not presented the people with any similar justification for needing new anti-terrorism laws for 10 years. Enacting exceptional laws for this long period is excessive, given the lesser threat Australia faces compared to France.

As well, countries such as France and Britain have long experience in combating terrorism. Both countries soon realised that overreacting to terrorism was counterproductive. Internment in Northern Ireland failed, and succeeded only in radicalising resistance to British rule. In Algeria, French paratroopers tortured suspects, which had much the same effect.

Australia has no comparable experience of sustained terrorist violence. Confronted with terrorist threats for the first time, Australian governments become susceptible to the kinds of overreactions that have plagued other democracies. It also makes us more likely to lack perspective on how rights and security should be properly balanced.

Human rights law does not interfere with firm responses to terrorism. It allows most rights and freedoms to be limited or suspended where necessary to ensure security. But it requires governments to publicly justify why certain rights should be limited in particular ways, to meet specific threats, during defined periods.

Some measures in the anti-terrorism bill are likely to infringe human rights, such as freedom from arbitrary detention, freedom of expression, association and religion, and the right to privacy and to an effective remedy.

Under international law, many of these rights can be suspended only in a public emergency. While France undoubtedly faces such an emergency, Australia does not - and it certainly does not face the same threat over the next 10 years. Even the appalling prospect of an isolated suicide bombing in an Australian city is not sufficient to amount to an emergency threatening the whole population.

If we suspend human rights too quickly or too easily, we soon lose sight of the value of rights themselves, as we trade them away for speculative gains in security. The Universal Declaration of Human Rights was drafted in 1948 [and Australia was both a proponent and signatory]. Its drafters were fully aware of the need for security, having seen the violence of a global war and the threat of a Nazi victory. Yet the countries that drafted the declaration (including Australia) insisted that human rights were too important to surrender too readily. That is why they imposed a fairly high threshold for taking them away, so that governments were not tempted to remove them when it was not absolutely necessary.

Australia needs a bill of rights. [See: http://guambatstew.blogspot.com/2005/09/unrepresentative-swill-part-2.html and http://guambatstew.blogspot.com/2005/10/rights-stuff.html and http://guambatstew.blogspot.com/2005/10/parliament-derives-from-french-verb-to.html] If crafted carefully, it would not interfere unduly with parliamentary supremacy, politicise the judiciary or impair security. It would, however, give Australians the same protections enjoyed in other democracies, even if it makes us a little bit more like the French."