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More on Australia’s draft anti-terror bill

Posted by James Hammerton @ 12:07 am on 29 October, 2005.
Categories democracy and the rule of law.
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Following on from my earlier article on Australia’s version of control orders, more information can be found via
Bruce Schneier’s report on the draft anti-terror bill.

A draft of the bill can be found here.

According to this ABC news article, the Australian government has been justifying the legislation as being no different to that passed in the UK, however this is disputed since Australia does not have an equivalent of the UK’s Human Rights Act:

A British legal expert says the Federal Government’s proposed new anti-terrorism laws offer limited protection against human rights violations, in comparison to UK laws.

Prime Minister John Howard has acknowledged that the British anti-terrorism laws have influenced what he is proposing for Australia.

Australian-born human rights barrister Dr Angela Ward has told ABC’s Lateline program the key difference in the laws lies in the fact that the UK terrorism legislation is subject to review against its Human Rights Act.

“That vests judges with powers to review conduct of the authorities that are really much broader than the Australian powers,” she said.

“So what I find most worrying about Mr Howard’s assertions that the Australian legislation is just like the UK regime, it really only tells half the story because the UK legislation can not be read in a vacuum.”

Dr Ward says human rights provisions, such as those requiring the humane treatment of people in preventative detention, must be extended to apply to all sections of the legislation.

She says major changes are needed to meet the demands of state and territory leaders for adequate parliamentary and judicial review of the laws.

“At the moment it’s only being dedicated to specific elements of the national security legislation and what’s really needed is much broader legislative reform before the type of protection that COAG [the Council of Australian Governments] would like to see is actually put in place,” she said.

A key point to note from this is the example of British legislation being used as a reference point by other countries. Clearly, the impact of British legislation is not confined to the UK.

So when the UK authorities pass legislation that weaken or remove fundamental protections, such as the right to a fair trial, the presumption of innocence, they not only weaken the rights of British residents, they also make it easier for other democracies to do so, especially those that were former colonies and/or draw from similar legal traditions as Britain.

Another point to note is the view of the Human Rights Act as a check on the British legislation. Whilst I do not think this is a particularly strong check — it can only be invoked once the legislation is used against someone, i.e. after the fact, and the rights defined are weak, in most cases being full of exceptions — it is perhaps the main legal defence for someone finds themselves wrongly placed under a control order. The British government has removed most of the other protections that existed prior to the HRA.

I shall provide a summary of the proposed Australian legislation once I’ve had a chance to digest it.

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