In the past five years, Australia has introduced 26 new pieces of legislation to combat terrorism. The vast majority of these laws are effective in preventing terrorism, but human rights groups and legal experts are concerned that terrorism is being used to justify human rights abuses. This is most especially evident in the Anti-terrorism Act 2005, and the Australian security intelligence organization Amendment (terrorism) Act 2003.
The key piece of Australia's domestic legal response to the global challenge of terrorism is The Anti Terrorism Act 2005. The laws will help prevent terrorism, but questions have been raised at whether it is worth the negative impact they will have on human rights.
The first concern is found in schedule one, with it now being possible to officially list a terrorist organization. This act broadens the law against being a member of an organization to when the leader of an organization praises a terrorist act; every single person who is a member of that group is a criminal. This makes it easier to identify and prosecute members of terrorist organizations, but this could lead to breaches of the right to freedom of opinion and expression found in article 19 of the Universal Declaration of human rights (UNDHR), and is against the principle of each person being responsible for his own actions and not being punished for a crime that somebody else commits.
The Act makes it a crime to give money to somebody and be reckless about whether that money goes to a terrorist organization. Michael Walton points out that under this law, an Australian donating to an overseas charity could be guilty of this offence if they do not inquire to where the money will end up. Therefore this law is not effective because it is disproportionate to its aim. This law would be much more effective if it required mens rea.
A control order is a specific restriction imposed by upon a person by a court that restricts where they can go, do or even who they can communicate with. A person does not have to be charged with a crime to have one of these imposed, as long as the court is satisfied that an order would substantially assist in preventing a terrorist attack. John North, President of the law council of Australia said that these laws do not do not respect the separation of powers. He also said that judicial power receives a fair procedure, which does not occur in relation to control orders. These laws threaten freedom of movement, religion and association by restricting the actions of innocent people.
Also included in schedule four is preventative detention. The purpose of this is to hold a person (again, without charging them) that they suspect is planning to engage in an imminent terrorist act for 48 hours. During this time the person is not allowed to tell others where they are, and the police and ASIO cannot question them during this time. Proposed state legislation means that this time period could be extended to two weeks- a huge infringement on freedom from arbitrary detention. This law would be effective with dealing with terrorism as it provides an avenue to detain people suspected of an imminent terrorist attack.
Amendments to sedition laws are also included in the Anti-terrorism act 2005. It seeks to criminalize incitement to violence against religious, racial, or political groups. An article in the human rights defender points out that while prohibiting incitement to violence against religious groups sends a vital normative message to society, presenting as a counter-terrorism law stigmatizes group-based violence as terrorism, when is conceptually different. It also states, “collapsing these categories can only reinforce the stereotyping of certain ethnicities or religions as terrorists”. Sedition laws could therefore be classed as ineffective as they are not appropriate for dealing with the issue of terrorism.
The effectiveness of the ASIO legislation act 2003 has been called into question as it is gives ASIO more power but not more resources. The numbers of Australia's key domestic intelligence agency has been downsized over the past
15 years. From 1988 to 1998, its numbers were slashed by a third from about 800 to 535.
It now has only 587 full-time staff to monitor a country of 20 million gives ASIO the power to detain and interrogate people as young as 16 if it believes they have information on terrorist activities. ASIO is also able to seek warrants to detain people for up to a week and question them in three eight-hour blocks. Amnesty international said “National security was invoked to justify the erosion of human rights safeguards in…laws on anti terrorism measures”
Australia's domestic legal response is generally effective and it reflects community standards, but its effectiveness would be increased by better resource efficiency. The governments response does not balance the needs of the individual over society, which can be seen by the individual human rights abuses or the lack of safeguards preventing them.
