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Less secure, less free: anti-terrorism laws

By Christopher Michaelsen - posted Friday, 20 May 2005


Since 9-11 and Bali we have witnessed a worldwide decline in respect for human rights and fundamental freedoms. Australia is no exception. Over the last three years more than twenty new pieces of legislation have been enacted to “enhance” security. These laws curtail the rights and liberties of all Australians to a previously unseen extent.

Persons not suspected of any offence can be detained for seven days without charge or trial. SMS and email messages of ordinary Australians can be intercepted without warrant. Traditional due process guarantees have also been slashed. In criminal proceedings involving matters of “national security”, for example, the defendant and his or her entire defence team can be ejected from the court while the Crown gives secret evidence.

The latest justification for these and other extraordinary measures has been offered by Robert Cornall, head of the Federal Attorney-General’s Department. Speaking at a security conference in Canberra recently, Mr Cornall referred to Article 3 of the Universal Declaration of Human Rights - the right to life, liberty and security of person - as a basis for Australia’s far-reaching terrorism laws. In an age of terror, Mr Cornall argued, individual rights had to “sit comfortably with this overriding human right to which every one in our community is entitled”. Indeed, according to Cornall it was imperative to balance individual rights with the rights of the Australian community as a whole.

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Mr Cornall’s proposition is at best misleading and at worst plainly wrong. First, the notion of “community rights” is inconsistent with the very idea of liberal democracy. In a liberal democracy only individuals, not the society as a whole, can bear rights and legal obligations. Individual rights can be enjoyed as long as they do not violate the rights of others. The interests of each individual are thus already balanced with the interests of the community as a whole. And here is the crux and weakness of Mr Cornall’s argument. Mr Cornall treats the community as an organism that makes decisions and has rights and interests that can override those of individuals. But only individuals can bear rights in the first place.

It is equally misleading to invoke Article 3 of the Universal Declaration of Human Rights as a basis for intrusive anti-terrorism laws. The declaration protects the right to liberty and security of the person. However it is widely accepted that this right does not relate to some broader right to safety. Furthermore it does not constitute any obligation for the State to protect with positive measures the physical integrity of its citizens. On the contrary, the declaration seeks to confine the power of the State to coerce individuals through arbitrary arrest and detention. As the European Court of Human Rights has confirmed, the expression “liberty and security of the person” must be read as a whole and in the context of physical liberty. It cannot be interpreted as referring to different matters such as a duty on the State to give someone personal protection from an attack by others.

When Mr Cornall speaks of “community rights” and invokes the Universal Declaration of Human Rights to justify Australia’s anti-terrorism legislation, he misses the point. The pressing question the Australian public deserves to have answered urgently is: do the anti-terrorism laws actually enhance security or are we trading off personal liberty for purely symbolic gains and psychological comfort?

It is unfortunate that none of the new anti-terrorism laws contain any review mechanisms that would enable Parliament or any other democratically accountable institution to assess whether the measures taken are actually effective. Likewise, it is worrisome that those advocating tough new laws often have no idea of what difference they will make to the terrorist threat. What is most concerning, however, is the fact that senior public servants have now adopted simple and misleading political rhetoric that once used to be the exclusive domain of the Government.

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Article edited by Angus Ibbott.
If you'd like to be a volunteer editor too, click here.

First published in The Canberra Times on May 13, 2005.



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About the Author

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

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