October 14, 2005
Putting people under house arrest for a year by a control order is tantamount to jailing people without trial. This is a shocking departure from Australia’s proud tradition of protecting individuals from an overly powerful state.
Brad Adams, Asia director at Human Rights Watch

(New York) - New counterterrorism measures proposed by Prime Minister John Howard severely threaten Australians’ civil liberties and violate international law, Human Rights Watch said today.

The proposed measures, announced last month, include the introduction of preventative detention for up to 14 days. Borrowing from draconian legislation passed earlier this year in Britain, the proposed Australian law would similarly authorize a variety of “control orders,” such as house arrest, electronic tracking devices attached to suspects, and broad limitations on where a suspect could go and who they could meet. Control orders could be in place for up to a year without any criminal charges having to be filed.

“Putting people under house arrest for a year by a control order is tantamount to jailing people without trial,” said Brad Adams, Asia director at Human Rights Watch. “This is a shocking departure from Australia’s proud tradition of protecting individuals from an overly powerful state.”

Howard has proposed giving the Australian Federal Police the power to hold people for 48 hours as “preventative detention” and has asked state and territory leaders to enact legislation allowing state police to detain people for up to 14 days. Individuals held in preventative detention would only be able to contact their families and employers to let them know that they are safe, but may be unable to explain where they are, why they are being held, or how they can be contacted. The government claims that detained individuals would have access to a lawyer, but all communications with the lawyer would be monitored by the government, threatening the basic principles of confidentiality necessary for an effective legal defense.

Under the proposed measures, courts would be responsible for authorizing “control orders,” but judges would only be allowed to decide if, “on the balance of probabilities,” the restrictions seem “reasonably necessary” for the purpose of protecting the public from a “terrorist act.” The balance of probabilities test is much weaker than that of “beyond reasonable doubt,” necessary for a criminal conviction. Control orders would be obtained from the courts in secret, and the individual subject to the control order would have no opportunity to contest the imposition of the order until it had already come into effect.

While a person held under a control order would have the right to judicial review, the government has failed to disclose what standard the court would use to reassess its original decision or to what degree the individual would have access to the file on which the original decision was based. Australian law already permits the use of secret evidence in some cases, which could raise an insuperable bar to challenging control orders on the basis of faulty or questionable intelligence.

“Locking people up or seriously restricting their liberty when they have not even been charged are characteristics of dictatorship, not a democracy,” said Adams. “Unjust measures are likely to alienate the very communities whose cooperation is vital to an effective counterterrorism strategy through the criminal justice system.”

Human Rights Watch said that serious questions remain as to how the proposed restrictions would be implemented. It is unclear whether these measures could be imposed cumulatively, whether the harm to an individual would be balanced against the government’s interest in obtaining a control order, or whether new evidence would be required to authorize a renewal. Safeguards proposed thus far by the government do not sufficiently mitigate the serious restrictions proposed on the rights to liberty, due process, speedy trial as well as freedom of movement, information, association, assembly and expression. A sunset clause has been added to appease critics.

“The government’s 10-year ‘sunset clause’ is hardly reassuring,” said Adams. “The Australian government should meet its responsibilities to protect fundamental rights now, not 10 years down the road.”

Many details of the proposed legislation, including the basic terms of new “incitement” crimes, remain unavailable to the general public, making it difficult to evaluate the effectiveness of any additional safeguards that the government may introduce. Human Rights Watch therefore urges the federal government and the governments of the states and territories to provide ample opportunity for public analysis and discussion, including a full Senate Committee review, once their draft legislations are released.

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