Anderson, Tim --- "Democracy, Rights and Terrorist Laws" [2003] HRightsDef 5; (2003) 12(2) Human Rights Defender 10

Democracy, Rights and Terrorist Laws

Tim Anderson

This article is an edited version of a speech that Mr Anderson gave at the University of Sydney in 2002.

The “war against terrorism” is lauded by dictators & authoritarians around the world. The Pakistani and Burmese military dictatorships have signed up. The Malaysian regime, which has jailed most of its opposition leaders under preventive detention laws, claims its laws to be a “best practice” model for the rest of the world. And Israeli “settlers” in the Palestinian West Bank now claim they are fighting “for the free world against terrorism” (O'Louglin 2002). However, states that claim adherence to democracy must be more careful.

Opportunistic policy making in countries with weak constitutional guarantees of rights, such as Australia, is undermining these countries’ claims to be democratic. The new wave of terror laws, around the globe, may well destroy many of those claims. New South Wales has found it easy to join in this trend, as the legal denial of rights in this state is now accepted as common place, despite politically marginalised criticisms.

The regular construction of laws that create arbitrary and discriminatory powers of arrest and detention is helping to build a crisis of legitimacy in law making. At some point those laws will begin to be publicly resisted and discredited. The “rule of law” will not be respected – and should not be respected – when laws begin to routinely and flagrantly breach international consensus on human rights.

This paper discusses that looming crisis of legitimacy, by reference to the principles of proportionality and equality before the law, and by examining the latest rights-violating law in NSW: the Terrorism (Police Powers) Act 2002.

Arbitrary laws and democracy

One of the key principles of the International Bill of Rights is the prohibition on “arbitrary” powers of arrest, detention and invasions of privacy (International Covenant on Civil and Political Rights (ICCPR) Articles 9 & 17). Respect for this principle in many ways distinguishes a democratic from a dictatorial state. But all states arrest, detain and invade the privacy of their citizens sometimes. So what does “arbitrary” mean?

According to Nowak (1993: 164), when the Covenants were being written, the interpretation of the word “arbitrary”, although contentious, was designed to avoid an exhaustive listing of all the permissible types of deprivation of liberty. The majority in the Human Rights Commission gave a broad meaning to “arbitrary”, saying it contained “elements of injustice, unpredictability, unreasonableness, capriciousness and unproportionality”, as well as a lack of due process (Nowak 1993: 172). In the context of interventions in suspected criminal or terrorist activity, as well as in strategic matters of self-defence and war, responses that are “proportionate” may avoid that “arbitrary, unjust and unreasonable” tag.

Unfortunately, proportionality has been lost in the US military response to the attacks of September 11, leading to the dangerous declaration of an open-ended war. Characterisations of the world as “good and evil” do not help. And in its traditional unthinking desire to please the US, the Australian Government has not only joined in this dangerous war, but has imposed draconian new state powers and restrictions on civil rights out of all proportion to any actual threat.

The threat of escalating, aggravated violence (“terrorist” or state-initiated warfare) can only be dealt with by working to remove the causes of aggravation. And in a practical sense, attempts to discipline and punish half the world are certain to fail, as are the attempts to set up new puppet governments in the Middle East.

Domestically, measures such as new police detention, search and surveillance powers, perimeter and VIP protection measures, removal of airport lockers and railway rubbish bins, can only diminish civil rights without reinforcing public security so long as dangerously undefined global war goals are pursued.

Yet even war does not abolish rights. Democracy involves a citizen’s effective right for self-rule and self-governance. This basic democratic capacity is snuffed out when state powers deny such first order human rights as equality before the law and freedom from arbitrary arrest and detention. In Australia, with a weak institutional culture of human rights, we are already a long way down this track.

In the current context, Human Rights Watch has drawn attention to “repression in the name of anti-terrorism” and “opportunism in the face of tragedy”. Human Rights Watch (2002) specifically cites Australia as a violator of rights through its extraordinary measures against asylum seekers. But the raft of sweeping new powers at both state and federal level are also making “non-citizens” of Australian residents. In NSW, several discriminatory civil provisions against prisoners and new systems of immunities from prosecution for police (Anderson 2001) have already undermined equal citizenship.

The new NSW terrorism law has to be read in this context, and in light of the unanimous UN General Assembly Resolution of 21 November 2002, which demands that: “any measure taken to combat terrorism complies with [a state’s] obligations under international law, in particular international human rights, refugee and humanitarian law”.

Provisions of the NSW Act

The NSW Terrorism (Police Powers) Act 2002 defines a “terrorist act” in a long, convoluted and broad way, which at first glance appears to exempt “advocacy, protest, dissent or industrial action”.

The special feature of the Act is that it gives senior commissioned police the power to “authorise” intrusions without warrants upon “targets” (persons, vehicles or areas). These “targets” seem likely to include whole groups of people (possibly defined as wide as “middle-eastern looking people” in a certain suburb) and groups of premises.

These intrusions (before an anticipated act of terrorism, or after an act of terrorism, i.e. during an investigation) in most cases require the concurrence of the Police Minister. This represents an unusual extension of ministerial power into operational policing. The intrusions are exempt from challenge by the courts and they involve special powers which remain in force over several days.

The special powers, augmenting existing police powers, empower any police or “law enforcement” officer to:

1.	demand identification;
2.	search persons;
3.	search premises and vehicles;
4.	seize things; and
5.	use “such force as is reasonably necessary to exercise the power”.

There are various penalties for obstructing police carrying out such operations (up to two years jail) or for failing to identify oneself (up to twelve months jail). Police have a very broad indemnity from prosecution for any conduct carried out under the Act.

Several types of search are identified, including strip searches, which may be carried out on anyone over the age of 10.

Though supposedly excluded in the legislation’s definition of a terrorist act, in practice the subjects of the intrusions (arrest, detention, search, forcible seizure) will include people involved in “advocacy, protest, dissent or industrial action”. Preventive “national security” measures in Malaysia (the Internal Security Act), for example, have been used almost exclusively against dissidents, protesters and miscellaneous “troublemakers”.

The way in which police will subvert the exclusion of “advocacy, protest, dissent or industrial action” is quite simple. The exclusion does not apply if the “action” may be seen as “intended” to “cause serious harm” or “create a serious risk to the health and safety of the public”. Once such an intention is suggested by police, the “advocacy, protest, dissent or industrial action” can become “terrorism”.

Given the NSW Police record of routinely portraying themselves as innocent victims in a range of confrontations including demonstrations and given that Police Ministers and many media commentators routinely accuse disruptive protesters and dissidents of being “violent”, it is easy to see how terrorist threats will be constructed. Already Federal and NSW MPs have openly branded pro-asylum seeker demonstrators and anti-WTO demonstrators as “violent” and potential “terrorists”.

There would appear to be no need for guns or bombs to become a “terrorist”.

Violations of human rights facilitated by this Act

“Arbitrary” detentions and invasions of privacy are unlawful under the International Covenant on Civil and Political Rights, which has been signed and ratified by Australia. International law therefore requires that there must be some specific reason to detain someone or to invade his or her privacy. It is not enough to say that there is some general “reasonable cause” that allows the targeting of groups of people.

Nor does the mere passage of a domestic law make police action legal under international law. A power enabling police to search a person simply because he or she belongs to a “target” group – without specific reason to suspect that person of any wrong doing – would most likely breach international law.

Similarly, personal searches, and in particular strip searches carried out on a person (including children between 10 and 18) with no specific cause, would most likely breach international law. Strip searching is widely recognised as a repugnant practice, akin to sexual assault, and likely to traumatise or re-traumatise individuals or, when used repeatedly, to desensitise whole groups (such as prisoners). Institutionalisation of strip searching should be shunned in any civilised community. The relevant international law, which prohibits arbitrary searching, is the Australian commitment to ICCPR Article 9(1) and, in the case of children, the Convention on the Rights of the Child (CROC) Article 37(b), both of which prohibit arbitrary detention. Additionally, ICCPR Article 17 and CROC Article 16 prohibit arbitrary interference with privacy.

The extension of ministerial power into operational policing in the NSW legislation is further reason for concern, as this appears to breach the Westminster convention on the separation of powers. It involves direct ministerial involvement in operational policing and a form of arbitrary, and probably discriminatory, policing at that. Ministerial targeting of embarrassing demonstrations seems likely. In human rights terms this would compound the arbitrariness of the police interventions, in likely breach of the ICCPR (Article 9).

The provision in the NSW Act that denies even the possibility of legal challenge to the operation of these special powers is also clearly in breach of the ICCPR (Article 3), which says that “any person whose rights or freedoms...are violated shall have an effective remedy...[including to] have his right determined by competent judicial, administrative or legislative authorities”.

Individual victims of police actions under these new arbitrary powers are entitled, under the First Optional Protocol to the ICCPR and after having exhausted domestic remedies (these seem to be denied at the outset by the denial of recourse to the courts), to complain directly to the UN’s Human Rights Committee. If the Committee issues an opinion against Australia, it would be up to the Federal Government to have the NSW Government change its law and practice. Such a process took place after the Human Rights Committee's decision in Toonen v Australia (1994), which led to the overturning of Tasmania's anti-gay laws.

Entrenching inequality before the law

The operation of this new law is likely to be discriminatory, just as the knife searching powers have been used in a discriminatory way against Arab, Islander and Aboriginal youth (Anderson 2001). Under the 2002 terrorism law, demonstrators and Arab communities will become the targets of arbitrary and unreviewable police interventions. They will be made second-class citizens.

With the onset of a wide range of discriminatory laws in NSW – mostly pioneered by the Labor Government, but with the support of the conservatives – it is interesting to reflect on the chaos that would ensue were the Parliament to pass a simple law which said: “All people shall be equal before the law – no exceptions”.

Prisoners would be able to register to vote and, if they were the victim of a violent crime, to apply for victim’s compensation. Police would not be able to commit serious crimes with impunity under controlled operations or anti-terrorist operations regimes. And people would be able to complain of discrimination, if they were targeted in police operations because of their race.

What a nightmare scenario! Isn't it just as well we have “the rule of law”, instead of “equality before the law”?

References

Anderson, Tim (2001) Criminal Oversight: a human rights review of recent criminal justice law in New South Wales, Public space: occasional paper series #3, UTS community law and legal research centre

Human Rights Watch (2002) “Opportunism in the face of tragedy: repression in the name of anti-terrorism”, http://www.hrw.org/campaigns/september 11/opportunismwatch.htm, 22 November

Nowak, M. (1993) UN Convention on Civil and Political Rights: CCPR Commentary, N.P. Engel, Kehl, Germany

O'Louglin, Ed (2002) “Jewish settlers in Hebron claim they have history on their side”, SMH, 9 December 2002, p.10

United Nations General Assembly (2002) “Need for compliance with human rights obligations in fight against terrorism”, UN General Assembly Resolution (A/C.3.57/L.61), 57th General Assembly, Third Committee, www.un.org

Terrorism (Police Powers) Act 2002 (NSW)

Internal Security Act 1961 (Malaysia)

Convention on the Rights of the Child 1989 (UN)

International Covenant on Civil and Political Rights 1966 (UN) (ICCPR)