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By Rosemarie P. Roark

Identify and critically discuss the effectiveness of safeguards that protect the human and legal rights of citizens

Terrorism affects the global community in many ways. Apart from being acts of terrorism, the attacks in New York, Bali, Madrid, and London all meet the international definition of a crime against humanity: they were large scale attacks directed at civilian populations. However, in the prosecution of suspects, a proper trial should be conducted with respect of human rights and liberties.

The threat of terrorism has had a significant impact on Australians since September 11, 2001, and it affects every area of the social life in the country now. The most recent reforms to Australia anti-terrorism legislation represent far-reaching attempts to prevent terrorism.

In their response to terrorism, governments need to remember that it is a complex phenomenon and that it’s crucial to understand this to be able to work effectively against it. Historically, the governments that respond to terrorism quickly introduce special legislation designed to accommodate prosecution for terrorism offences. But Failure to understand the complexity of terrorism and its causes can lead to a judgment that the protection of human rights is a minor, marginal issue in the fight against terrorism (Charlesworth, 2003). The protection of human rights and the separation of powers must be a core focus of the government’s agenda. For, just as no political, religious or philosophical cause can justify violating the right to life of civilians, no response to terrorism can justify violating fundamental human rights.

The safeguards that protect human and legal rights of citizens have been of little effect in ensuring that Australia is a model in respect of protection of human rights. The presumption of innocence, the right to privacy and the right to a fair trial have all been regularly breached in the name of counter-terrorism. Even though, according to ICCPR, you could not simply deny a particular religious group freedom of speech, movement, or a right to privacy in the name of protecting security, human rights are seen as utterly dispensable in the pursuit of a greater political goal.

The tendency is to assume that security concerns should have priority over human rights. However, there are provisions in all major international and regional human rights treaties. The definition of international human rights principles strikes a balance between the enjoyment of particular freedoms and national security. The ICCPR provides that some rights can be limited in very specific circumstances. The Covenant refers to ‘times of public emergency, which threaten the life of the nation and … is officially proclaimed’ (Charlesworth, 2003). According to ICCPR there are certain rights from which derogation is never permitted. These include the rights to life, to be free from torture, not to be enslaved, and the right to freedom of thought, conscience and religion. The permitted derogations from rights cannot involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. It’s also clear that the elements of a right to a fair trial apply even during an emergency.

There are certain criteria for the balancing of human rights with the combating of terrorism proposed by UN High Commissioner for Human Rights. These include the requirement that laws restricting human rights in a time of emergency would have to use precise criteria and not confer unfettered discretion on those charged with their execution. Any limitations must conform to a principle of proportionality, respect the principle of non-discrimination, be compatible with the objects and purposes of human rights treaties, and not impair the essence of any right. Arguably, some of the Australian security legislation does not meet these standards. The US PATRIOT Act and the UK anti-terrorism legislation certainly do not meet these principles (Charlesworth, 2003).

In the aftermath of 11 September 2001, the United Kingdom enacted the Anti-terrorism, Crime and Security Act. The Act provides the indefinite detention of a non-British person suspected of involvement in international terrorism. This law breaches many of the safeguards offered by developed legal systems, such as the right not to be arbitrarily detained.

When reacting to terrorist incidents the governments should remember that in order to build a durable global human rights culture, the value and worth of every human being needs to be asserted; it is essential if terrorism is to be eliminated.

The targeted measures taken to fight terrorism do not seem to fit into the human rights framework where life and dignity are not compromised no matter what the ends. Changes to the ASIO Act and a number of other anti-terrorism laws constitute an inappropriate response to the threat of terrorism (Stott, 2003). ASIO Legislation Amendment (Terrorism) Bill enables ASIO to detain people without charge, hold them incommunicado, deny access to legal advice, strip-search detainees and interrogate them in detention for at least 48 hours. ASIO Legislation Amendment (Terrorism) Bill fundamentally alters the existing legal framework in a number of crucial respects. The detainees, including children, can be held in secret, barred from contacting anyone, including their families and lawyers. They can be held for 48 hours from the time they are brought before a magistrate or tribunal member, and new warrants can be issued, allowing ASIO to extend the detention indefinitely. If ASIO demands any information from detainees, they must provide it or face five years jail. Police officers can use “reasonable and necessary” force to conduct strip-searches. This power also reveals the government’s intention to detain children. ASIO can seize and retain any items found or produced on its demand.

Attorney General refers to “strict safeguards” of individual freedom with the main one being the need for ASIO to obtain his consent before seeking a detention warrant. Detainees “must be treated with humanity and with some respect for human dignity, and must not be subjected to cruel, inhuman or degrading treatment” (Head, 2002). However, there is no penalty when the safeguards are breached. The police and security agencies already have all the powers to investigate, prevent and punish genuine acts of terrorism, which are fully covered by existing criminal law.

The government admits that no discernible terrorist threat exists in Australia. Moreover, no terrorist acts have been recorded since the single 1978 bomb blast outside a British Commonwealth leaders meeting at Sydney’s Hilton Hotel. Despite this, the psychological impact of the possibility of terrorism is devastating to the well being of Australians. The citizens of Australia remain excessively fearful of terrorism. Since September 11, many Australians believe that terrorism is an inevitable occurrence.

Australian population has increased fear and anxiety, experience and expresses more discriminatory attitudes, and has decreased job satisfaction and increased occupational stress. Fear and anxiety due to the terrorist threat is also creating an uncertain and hesitant workforce.

International terrorism is viewed as the third most worrying outside threat behind nuclear proliferation, and global warming (Howie, 2005). Yet, the geographical isolation and strategic insignificance of Australia means that the terrorist threat remains extremely low. This does not mean, though, that terrorism should be dismissed as such and certain actions are definitely necessary.

Politicians will frequently rally the citizens of Australia to assist in any way possible by saying something when they see something. Many people believe that the necessary actions in eliminating terrorist threat include granting law enforcement personnel powers to shoot to kill, detaining people for 14 days incommunicado, and searching people and bags. This, however, will do little in preventing a terrorist attack in Australia.

It is true that the word ‘terrorism’ can very easily be used in an omnibus way to mean any activities that are associated with particular cultures and religions (Charlesworth, 2003). Thus, bag and person search provisions in Australia necessarily profile Muslims and people of Arab descent. Australian Muslims have already been facing many difficulties resulting from the terrorist threat. Muslim community has become the emblem of the hatred on part of Australians towards terrorists (Howie, 2005).

Legislation that alienates Australia’s overwhelmingly moderate Muslim communities can only enhance the willingness of some to act violently. People working in Melbourne, for example, frequently witness discrimination. Failure to prevent this attitude can have significant legal and financial consequences. Instead of exhibiting tolerance, the tendency is to demand assimilation as Islamic groups and individuals are forced to announce their opposition to terrorism. As long as Muslims are victimized, extremist attitudes will only be gaining popularity. Every intolerant comment or a strict piece of legislation confirms the views of radicals like Osama bin Laden who claim that Western governments are racist and are out to destroy Islam.

Safeguarding Australia will be extremely ineffective as long as current legislation leaves human rights vulnerable and unprotected. The alienation of Australian Muslims will only lead to a higher likelihood of an attack occurring in Australian cities and foster a new generation of homegrown extremists who witness family and friends being searched, and who experience discrimination in public places.

With the current anti-terrorism legislation, the ‘War on Terror’ seems very unlikely to cease in the foreseeable future. The government’s tendency to respond to terrorist acts with a lot of security talk and measures that require considerable undermining of basic civil liberties and human rights should be addressed. In combating terrorism, the focus should be on creating the legislation that protects both national security and civil liberties, as well as minimizes the impact of counter-terrorism laws on human rights.

References

Audrey, K. C., 2002/03, ‘Behind the Curve: Globalization and International Terrorism’, International Security, Vol. 27, No. 3

Baily, P., 1990, ‘Australia in an International Context’, Butterworths, Sydney.

Charlesworth, H., 2003, ‘Human Rights in the wake of Terrorism’, Law Society Journal.

Commonwealth, Parliamentary Debates, Senate Legal and Constitutional Committee, Reference: Security Legislation Amendment (Terrorism) Bill, 8 April 2002

Cook, I., 2005, ‘Australians Speak 2005: Public Opinion and Foreign Policy’, The Lowy Institute, Lowy Institute for International Policy, Sydney.

Criminal Code Amendments (Anti-hoax and Other Measures) Act 2002

Hancock, N., ‘Terrorism and the Law in Australia: Legislation, Commentary and Constraints’, Parliament of Australia, Department of Parliamentary Library.

Hans, K., 2002, Manila Lectures 2002. Terrorism and the Quest for a Just World Order. Quezon City (Manila): FSJ Book World.

Head, M., 2002, ‘Australian government launches new attacks on free speech’.

Head, M., 2002, ‘Counter-terrorism laws threaten fundamental democratic rights’, Alternative Law Journal, Vol 27(3), pp 121-126

Head, M., ‘Military Call-out Legislation’

Hockinig, J., ‘Beyond Terrorism, the Development of the Australian Security State’, Allen & Unwin, Sydney, 1993

Howie, L., 2005, ‘The threat of terrorism and social change’, Human Rights Defender Special Issue: The Anti-Terrorism Bill (No. 2) 2005. November/December: 22-23

Lerner, B. W., & Lerner K. L., eds. ‘Terrorism : essential primary sources’. Thomson Gale, 2006.

Lyal S. S., 2002, US Anti-Terrorism Policy and Asia’s Options, in Johannen, Smith and Gomez, (eds.) September 11 & Political Freedoms: Asian Perspectives (Select)

Michaelsen, C., 2005a, ‘Why Terrorism is a Distant Fear For Us’, The Age, September 10, http://www.theage.com.au/news/opinion/why-terror-ism-is-a-distant-fear-for-us/2005/09/09/1125772686473.html

Michaelsen, C., 2005b, ‘Antiterrorism Legislation in Australia: A Proportionate Response to the Terrorist Threat?’, Studies in Conflict and Terrorism, Vol. 28, pp. 321-339

Pape, R. A., 2003, ‘The Strategic Logic of Suicide Terrorism, ‘ American Political Science Review.

Stott D. N., 2003, ‘Stop undermining human rights’, Alternative Law Journal, Vol 28(4), pp 165-166 Defender.

Walter L., ‘No End to War – Terrorism in the 21st Century’, New York, 2003