Human rights protections must be part of national security review

21st Jul 2017

Federal government proposals to combine Australian security agencies into a single ‘national security super-agency’ must also include strengthened human rights protections for all people in Australia, the Australian Lawyers Alliance (ALA) said today.

Earlier this week Prime Minister Malcolm Turnbull announced a review of Australian national security arrangements, including combining currently separate security agencies such as ASIO, the Federal Police and border security into a single Ministry. The government also plans changes to the “call out” powers which will empower the military to join local police in confronting terror threats and grant it the ability to shoot-to-kill.

ALA spokesperson and barrister Greg Barns said the strengthening of the national security apparatus must be accompanied with an associated strengthening of Australian human rights protections similar to those enjoyed by Australia’s allies.

“Moves to wrap agencies such as ASIO and the Federal Police into a ‘Ministry of Home Affairs’ must go hand in hand with the implementation of strong legislative human rights protections for all people in Australia,” Mr Barns said.

Mr Barns said that these protections, such as an enforceable Bill of Rights, should allow people to challenge the activities of security agencies if they feel or fear that their rights have been violated.

“The Prime Minister justified the proposed reforms by comparing Australia’s laws to those in the other countries which are a part of the Five Eyes intelligence sharing alliance (Australia, USA, UK, Canada and New Zealand). However, what he failed to mention is that each of these countries has robust human rights protections to guard against excesses of intelligence agencies,” Mr Barns said.

“The UK’s counter-terrorism activities can be examined both under the Human Rights Act in the UK and in the European Court of Human Rights. The USA regularly sees either laws, or the exercise of laws, overturned in the courts on the basis of constitutional human rights protections. One example of this was the courts overruling recent attempts by the US government to ban immigration from certain countries on security grounds.”

“We don’t have the same human rights protections in Australia, while our counter-terrorism laws are among the most invasive,” Mr Barns said.

Mr Barns said that while the ALA welcomed the call for a comprehensive review of national security legislation, it rejected a recommendation that would dramatically expand the powers of security organisations to conduct surveillance of people who fall into a loosely defined group.

“Such a broadly-defined approach to securing warrants dramatically undermine all of our rights,” Mr Barns said. “The warrants would be available to conduct surveillance of anyone that a security organisation believes is involved in a proscribed terrorist organisation. This is a dramatic expansion of surveillance powers, which as far as the ALA is aware does not exist in any of the other Five Eyes countries.

“Our rights to privacy, freedom of expression and liberty are particularly impacted by our approach to national security. As the report rightly acknowledges, balancing surveillance powers with the right to privacy is essential in ‘securing ongoing public support for the powers entrusted to intelligence agencies’. This recommendation gets that balance badly wrong”.

“The ALA does not support the recommendation to introduce ‘class-based’ warrants and cautions against pursuing such a regime,” Mr Barns said.

However Mr Barns said the ALA welcomed the government’s announcement that agency oversight would be increased.

“We look forward to details on this security agency oversight being consulted widely with lawyers, human rights experts and other civil society actors, as well as security and intelligence experts,” Mr Barns said.

“Transparency and accountability must underpin our national security policy,” Mr Barns said.

“The default position should always be transparency. Only where there is a demonstrable need for secrecy on national security grounds should secrecy be allowed.”

Tags: Human rights Access to justice police powers Greg Barns