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'Fair go act' needed in an age of terror

By Christopher Michaelsen - posted Wednesday, 3 August 2005

In mid-July, Germany’s highest court, the Federal Constitutional Court, ordered the release from custody of Syrian-German businessman Mamoun Darkazanli citing objections to a new German counterterrorism law which implemented into domestic law the so-called European Union arrest warrant procedure. The warrant, one of the main counterterrorism measures introduced by the EU in the wake of the 9-11 attacks, was intended to give member states the right to extradite citizens charged with serious offences.

Mr Darkazanli, who had been in custody in Hamburg since October 2004, is accused by Spanish authorities of being Osama bin Laden’s “permanent interlocutor and assistant” in Europe and having provided al-Qaida with logistical and financial support between 1997 and 2002. German prosecutors, on the other hand, have failed to produce criminal charges against Mr Darkazanli due to a lack of evidence. And so the EU warrant procedure would have allowed his extradition to Spain.

The Federal Constitutional Court, however, quashed the (German) EU warrant law and upheld Mr Darkazanli’s argument that handing him over to Spanish authorities would violate Article 16 of the German constitution. This article provides that a German national cannot be extradited in all but the most exceptional circumstances because he or she would be unfamiliar with the law and language of the other land and could therefore not sufficiently defend him or herself.


The judgment represents a severe embarrassment for Chancellor Gerhard Schröder and the German Parliament who must now introduce fresh legislation in order to comply with EU policy. What is most striking, however, is the fact the court’s ruling is the third decision by a European high court in just seven months putting a break on special anti-terrorism laws, which had been rushed through the respective parliaments in the aftermath of the 9-11 attacks.

In December 2004, Britain’s highest court, the House of Lords, held that some key provisions of 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. The convention was given domestic effect in Britain by the Human Rights Act 1998.

Then, in June this year, Germany’s Federal Court of Justice, the highest court of appeal in criminal proceedings, ordered the release of Hamburg-based 9-11 suspect Abdelghani Mzoudi. Despite being subjected to intense political pressure, the federal judges held that the traditional rules of procedure and evidence must also apply in cases where the accused is charged with serious terrorism offences, and that the prosecution had failed to reach the required standards.

What the three decisions have in common is that they send a very clear message to European governments and legislatures. Any response to the threat of international terrorism must be proportionate and strictly compatible with traditional democratic principles and the rule of law. In other words, when combating international terrorism, governments must not sacrifice the very rules and principles they are fighting for in the first place.

It is about time the Australian Government paid close attention to this message too. Since 9-11 and Bali, the Howard Government has enacted more than 20 new “security laws”. These laws curtail the rights and liberties of all Australians to a previously unseen extent.

Persons not suspected of any offence can be detained without charge or trial. SMS and email messages of ordinary Australians can be intercepted without a telecommunications warrant. Traditional due process guarantees have been slashed, too. 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.


These and other provisions make Australia’s anti-terrorism laws some of the toughest in the Western world. In contrast to other liberal democracies, however, effective judicial control of enacted legislation is missing in Australia. Unlike their British, Canadian or German counterparts, Australian judges have little if any power to subject the unprecedented anti-terrorism laws to judicial scrutiny. And in the very limited circumstances where judicial scrutiny of such laws is possible, Australian courts cannot examine their compatibility with any human rights instrument.

The reason for this lack of human rights protection is simple. Australia does neither have a constitutional bill of rights (like the United States or Germany), nor does it have any special act of parliament protecting the citizens’ basic rights and freedoms (like the United Kingdom and New Zealand). Although Australia has been a party to the UN International Covenant on Civil and Political Rights since 1980, it has so far failed to give domestic effect to its international obligations (again in contrast to the UK).

Rather than fantasising about the threat of potential suicide bombers living in Australia, Prime Minister John Howard and his government should spend more time and energy on drafting and enacting an Australian equivalent to the UK and New Zealand human rights acts. The Australian version could be called a “Fair Go Act” and should codify the very basic human rights, civil liberties and fundamental freedoms Australians take for granted, perhaps too easily.

No question, a "Fair Go Act" requires political courage. In the end, however, such legislation would enhance the security of every single Australian citizen far more than any anti-terrorism law ever possibly can.

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First published in the Canberra Times on July 22, 2005.

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About the Author

Christopher Michaelsen is an Associate Professor in the Faculty of Law & Justice at UNSW Sydney.

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