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How the House of Lords has exposed Howard's ASIO Act

By Christopher Michaelsen - posted Wednesday, 5 January 2005


In a landmark decision the House of Lords, Britain’s highest court, recently ruled that the “draconian” measures introduced by the Blair Government’s Anti-terrorism, Crime and Security Act 2001 were inconsistent with obligations binding the United Kingdom under the European Convention of Human Rights (ECHR). The European Convention was given domestic effect in Britain by the Human Rights Act 1998.

Because of the fundamental importance of the issues at stake, the case was heard by a panel of nine Law Lords rather than the usual five. Ruling by an 8-1 majority, the Court quashed the government’s order to opt out of Britain’s commitments under the ECHR and held that indefinite detention of foreign (i.e. non-UK) terror suspects without charge or trial was incompatible with the right to freedom from arbitrary arrest. More generally, the Court found that such detention was “anathema in any country which observes the rule of law”.

The Court’s verdict represents a severe blow for the British Government which is now under pressure to repeal the detention provisions of the controversial anti-terrorism legislation. But does the decision of the House of Lords have any consequences for Australia?

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Under anti-terrorism legislation enacted by the Howard Government last year, ASIO, Australia’s domestic intelligence agency, can seek a warrant to secretly detain and question people for up to seven days. In contrast to comparable legislation in Britain, Canada or the United States, persons detained under the ASIO Act do not need to be suspected of any terrorism offence. People can be taken into custody without charges being laid or even the possibility that they might be laid at a later stage. It is sufficient that the authorities have “reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important in relation to a terrorism offence”. The detention decision is not subject to regular judicial review. This means that detainees cannot challenge their detention in any Australian court of law.

Obviously these arrangements also raise serious concerns in relation to the freedom from arbitrary arrest, a right which is not only codified by the ECHR but also by the International Covenant on Civil and Political Rights (ICCPR). Australia became a party to the ICCPR in 1980. However, in contrast to the United Kingdom and New Zealand, Australia does not have any legislation giving domestic effect to its obligations under international human rights law. This has rightly led to prominent members of the legal profession calling for an Australian bill of rights. But in the absence of any domestic human rights instrument, the legal implications of the Law Lords’ decision for the validity of Australia’s anti-terror laws remain very limited.

Nonetheless, the Court’s ruling has significant political implications for Australia. In particular, it casts doubt over the government’s assertion that the ASIO Act’s detention regime constitutes a necessary and proportionate legal response to the threat of international terrorism. Interestingly, Britain’s House of Lords was not convinced that the terrorist threat to the United Kingdom justified the detention of foreign terror suspects without charge or trial. As Lord Nicholls of Birkenhead put it, “It is difficult to see how the extreme circumstances which alone would justify such detention can exist when lesser protective steps apparently suffice in the case of British citizens suspected of being international terrorists”.

So, if the terrorist threat to the United Kingdom does not justify the prolonged detention of suspects without charge or trial, how can the threat to Australia warrant the detention of persons not even suspected of being involved in any terrorist activities? After all, Australia’s profile as a target for terrorism attacks is considerably lower than that of the United Kingdom.

Moreover, if prolonged detention of suspects without charge or trial is generally unacceptable in Britain, how can the detention of non-suspects without charge or trial be acceptable in Australia?

These are pressing political questions the Attorney General, Philip Ruddock, has to answer.

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One platform where these important questions can and must be fully addressed as well is the Federal Parliament’s intelligence committee. Coincidentally, the committee launched an inquiry into ASIO’s detention and questioning powers the same day the House of Lords handed down its decision. As the committee’s chair, Liberal MP David Jull, pointed out, it may represent the only opportunity for detailed parliamentary scrutiny of measures that are unprecedented in Australian history. Indeed, given that judicial scrutiny of the ASIO Act is extremely limited, the current parliamentary investigation is all the more important.

It is to be hoped that the parliamentary committee in Canberra will duly consider the House of Lords decision and eventually find that we cannot win the “war on terror” by sacrificing the very liberal democratic principles that define “our way of life” in the first place. One such principle is that unlike ruthless dictators and fundamentalist fanatics we do not lock up people without charge or trial.

However, this is exactly what the current ASIO Act allows for. As far as the detention regime of the British legislation is concerned, the Law Lords cautioned wisely that “the real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these”. It is about time that the Howard government took this warning seriously, too.

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First published in the Canberra Times on December 22, 2004.



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About the Author

Christopher Michaelsen is a Research Fellow at the Faculty of Law, UNSW.

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ASIO Act -"Anti-terrorist legislation"
The House of Lord's decision
The Inquiry
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