Draconian counter-terror laws must be repealed

30th Oct 2017

Draconian counter-terrorism powers such as warrantless searches and preventative detention orders do little to enhance security and serve only to further marginalise people, the Australian Lawyers Alliance (ALA) said today.

The Joint Parliamentary Committee on Intelligence and Security is currently reviewing legislation which gives security agencies access to control orders, preventative detention orders (PDOs) and warrantless searches.

ALA spokesperson and barrister Greg Barns said that in the interests of justice, all security powers under review should be repealed or allowed to expire next year with the passing of the sunset clause. He called for Parliament instead to introduce an enforceable federal human rights act.

“These extraordinary police powers are an unacceptable impost on the human rights of all Australians and should be repealed as soon as possible,” Mr Barns said.

“It is hard to make a case that these powers improve our national security as they have been on the books since 2005 and have rarely been used. Why do we need them? The evidence indicates that existing powers of investigation and prosecution are adequate to meet the threat posed by terrorism.”

“Control orders, preventative detention orders and warrantless searches have no place in Australian society and should be repealed,” Mr Barns said.

Mr Barns said that any law reform intended to enhance national security should be based on evidence and comply strictly with international human rights law. He said that the legislation allowing control orders, PDOs and warrantless searches undermines fundamental human rights protections that have existed under the Westminster system for centuries.

“Australia has borrowed this draconian security legislation from the United Kingdom without also adopting the UK’s human rights protections or restrictions on the use of evidence,” Mr Barns said.

“Preventative detention orders allow the detention of individuals without charge or even suspicion. No other similar country allows such detention.”

“The UK has a human rights act, and does not use wiretaps in prosecutions. The extraordinary national security powers available to Australian police are meant to be balanced by protections that exist elsewhere, but not in Australia,” Mr Barns said.

Mr Barns said a recent report by the Independent National Security Legislation Monitor pointed out that international law requires any imposition on rights to be necessary and proportionate to the risk faced.

“Given that these draconian police powers have rarely been used, even though numerous national security threats have been foiled and numerous raids and traditional arrests conducted, it is hard to see that they are necessary,” Mr Barns said.

“It is also hard to see how imposing incommunicado detention, warrantless searches or the infringements on liberty and privacy via control orders is proportionate.”

“Safeguards on these powers are inadequate under current arrangements, and could potentially allow reliance on evidence extracted under torture abroad or racial profiling,” Mr Barns said.

“This is not only a concern from the point of view of relying on or condoning dangerous or discriminatory practices, it will also mean that people are subjected to these powers based on unreliable evidence.”

Mr Barns said that individuals detained under PDOs have very limited rights to say where they are.

“People detained under a PDO are only allowed to inform people that they are safe, not that they are being detained pursuant to a PDO,” Mr Barns said. “If they or anyone else who finds out about the detention discloses it without permission, heavy prison sentences of five years can be imposed. This is not justice.”

Mr Barns called on the federal government to urgently introduce an enforceable federal human rights act.

Click here to read ALA’s submission to the inquiry.

Tags: police powers terrorism