Anti-terror laws threaten separation of powers

13th Oct 2014

Key clauses in the Commonwealth’s proposed new Foreign Fighters anti-terror legislation could be unconstitutional as they undermine the separation of powers, the Australian Lawyers Alliance (ALA) said today.

In a submission to the Parliamentary Joint Committee on Intelligence and Security about the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill, introduced into the federal parliament last month, the ALA criticised the “rushed Bill review process, saying the new laws threaten the independence of the judiciary, introduce retrospective warrants and more than triple the period an individual can be detained without others being notified.

‘An independent judiciary with power to curtail the excesses of executive government is a fundamental check and balance on executive authority. Revolutions have been fought for rights of access to an independent judiciary by free men and women. We should not lightly or willingly surrender rights which were once fought so hard for in a few moments of fear,’ the ALA said in its submission.

‘Fundamental to our rights as citizens is the right to be free. The power to detain without warrant, without charge, without access to legal advice is normally reserved for dictators and tyrants. No free society unnecessarily cedes to its government powers of detention without review,’ the submission said.

‘We raise concern at this rushed process, particularly in the current political climate, which is focused very much on fear-based messages, the threat of terrorism and the need for freedoms to be watered down in order to ensure security. We believe that all legislation which threatens the fundamental rights of Australian citizens must be considered carefully and with proper acknowledgment of the value of the rights which are being curtailed,’ the ALA submitted.

ALA spokesperson and barrister Greg Barns said that the Foreign Fighters Bill threatened to destabilise the separation of powers set out in Australia’s Constitution.

“The Foreign Fighters Bill reduces the role of judicial oversight and approval of police warrants to that of a rubber stamp,” Mr Barns said.

“Under the legislation, judicial officers will be able to issue ‘delayed notification search warrants’, which in effect are warrants that retrospectively authorises the activity that the police have already carried out.”

“Warrants can be arranged electronically or by telephone, so why are retrospective warrants needed?” Mr Barns said.

“If the police have time to brief media before they carry out a terror raid, they have time to get a warrant.”

Mr Barns said the Bill also gave the federal parliament the power to punish citizens by removing welfare payments from a person before a court has even upheld that they are guilty of an offence under the new legislation. He said the Australian Constitution and the doctrine of the separation of powers, had previously reserved punishment solely for the courts.

‘Any citizen is entitled to access the social security system… if we fall on hard times,’ ALA’s submission said.

‘Normally, government officials and the Minister are not provided with the power to arbitrarily remove those rights with immunity from review. No matter how great the terror threat, it is in no way necessary to vest such omniscient power in Ministers now,’ the ALA submitted.

Mr Barns said that under the Foreign Fighters Bill, the period that a suspect can be detained by police without family members or legal representatives being notified would more than triple, increasing from 45 mins to four hours. He said that in those four hours police and ASIO will be able to put undue pressure on individuals and abuses of power will occur.

“Rushing through laws like the Foreign Fighters Bill is never a good idea, as you need time to work through the ramifications of any changes you are proposing,” Mr Barns said.

“This type of legislative review should be carried out in a calmer, more reasoned atmosphere, and not just be a knee-jerk reaction.”

The Australian Lawyers Alliance submission on the Foreign Fighters Bill to the Parliamentary Joint Committee on Intelligence and Security can be found here

Tags: Access to justice police powers terrorism