No need to abandon human rights to be tough on terror (2006)

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No need to abandon human rights to be tough on terror

Author: Sev Ozdowski

Publication: The Canberra Times (11,Wed 20 Sept 2006)

In the post-September 11 world, debate about counter-terrorism is often characterised as an argument between 'the realists', who appreciate the need for tough new counter-terrorism laws, and 'the out of touch', who fail to take the terrorist threat seriously.

Human Rights and Equal Opportunity Commission President John von Doussa QC argues that such characterisations are inaccurate and unproductive.

There is no argument that terrorism is a gross violation of fundamental human rights. Only the misguided or the bad would suggest otherwise. We are locked in a dark and difficult struggle with those who seek to attack not just our lives, but our way of life. The government is right to take action to guard against the worst-case scenario.

However, I also don't believe anyone would seriously suggest that the threat of terrorism justifies the wholesale abandonment of the democratic rights and freedoms embedded in our legal system.

The crucial challenge facing Australia, indeed all democratic nations, is how to effectively respond to the threat of terrorism without abandoning fundamental rights that are the hallmark of free and democratic societies.

However, in the new 'age of terrorism' there is a persistent and popular misconception that human rights are inflexible, esoteric principles that hamstring government efforts to respond to a new and unprecedented threat. This is simply not the case.

Human rights law was forged in the wake of devastating periods of global conflict and clearly recognises the necessity of balancing the need to protect individual rights against the need to protect national security.

In extraordinary circumstances, protecting national security may involve restricting fundamental rights. And human rights law already recognises this reality.

If the gravity of the threat means that the Government has no other choice than to suspend or restrict certain rights then the government may be able to 'derogate' from some of its international human rights obligations. Fortunately, so far the Australian Government has not seen the need to invoke this derogation procedure.

Rather, the government has consistently said that it recognises the need to balance counter-terrorism laws with human rights and that Australia's counter-terrorism policies must embody the democratic values Australia seeks to protect.

Striking the right balance is not an easy or mechanical task. In many cases it will depend on how the law is applied in the particular circumstances.

In the last five years we have seen the introduction of a raft of counter-terrorism laws which expand the power of the executive to make decisions which may infringe people's rights - often without corresponding checks and balances.

I have always said that the government has both a right and a duty to introduce tough new counter-terrorism laws to respond to unprecedented new threats to our security.

But I have also said that extraordinary new powers - like preventative detention orders, control orders and the power to proscribe terrorist organisations - need to be accompanied by adequate safeguards.

Alas, too often new counter-terrorism powers have been proposed without properly considering the potential human rights implications.

This is a very disappointing, because it overlooks the ability of simple safeguards - like merits review and judicial review - to guard against illegality or error, and to check that the exercise of the power is necessary and proportionate in the circumstances of the particular case.

Some people might say 'why worry about rights', when terrorists show no regard for our rights?

The answer is both principled and pragmatic - we must maintain the moral and ethical high ground.

Terrorism is an ideologically and politically motivated assault on not just our lives, but our democratic rights and freedoms. Any strategy in countering extremism must promote and uphold the basic human rights and freedoms that make our way of life worth protecting.

The question of how to balance individual human rights and collective security in the post-September 11 environment should be the subject of vigorous public debate.

However, it is vital this debate move beyond the inaccurate and dangerous idea that we must choose between national security and human rights.

Support for human rights is not a weakness in the fight against terrorism or a blindness to its evil. Human rights law enables us to respond to the dangers of the terrorism without losing sight of the very rights and freedoms that we seek to protect.