Locking up someone for 14 days without charge in a terrorism investigation might enable a desperate government to win some points with voters but it is a charter for police abuse and any “evidence” obtained is likely to be of little value and rejected by a court as unfairly obtained.
Prime Minister Malcolm Turnbull’s proposal, similar to one mooted by Victoria’s government recently, is part of a package of new anti-terror laws he is proposing. If these laws see the light of day, it will bring to around 75 the number of anti-terror laws considered by, and in the main passed, by the federal Parliament since 9/11.
But detention without charge is anathema to a society that respects the rule of law. The great English jurist Tom Bingham noted that strict limits on the time a person could be detained without charge is “one of the most fundamental safeguards of personal liberty”. We used to associate the whisking of people off the street with authoritarian regimes, which use the mantle of “security of the state” to justify holding people in detention for long periods without charging them with any offence.
[Turnbull agilely navigates the ‘do something’ terrorism mentality]
Leaving aside the fundamental undermining of democratic values and the rule of law that Turnbull’s proposal represents, there are two other major dangers with the idea that police and security agencies, like ASIO, should have the power to detain someone for two weeks without having to charge them.
The first is that such a power will lead inevitably to abuses of power by police and security agencies. When a person is imprisoned under this proposed power, they are at the whim of those detaining them. They are isolated from family and friends, have limited access to legal advice, and are kept in conditions that ensure sleep deprivation and isolation are prominent features of their daily schedule. Police and security agencies can hold out the “promise” that they will be released before the 14 days expire — if they “co-operate” with investigators.
As a consequence of the inherently problematic nature of what is effectively 14 days’ imprisonment, the second danger of unreliability of any evidence gained from the detention arises. You do not have to be seasoned criminal law expert to know that the longer you hold a person in detention in circumstances where they have not been charged or are not serving a sentence, the more likely it is they will tell investigators what they want to hear in order to remove themselves from the detention.
[There is no Australian terrorism ‘crisis’ and involving the military is dangerous]
There is also the fact that the 14-day-detention-without-charge proposal breaches three articles of the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a signatory. They are: the prohibition on arbitrary detention (Article 9(1)); the right of an individual to be informed, at the time of arrest, of the reasons for his or her arrest and be promptly informed of any charges against him or her (Article 9(2)); and the right of any person arrested or detained to be brought promptly before a judge or other officer authorised to exercise judicial power to rule on the lawfulness of that detention (Article 9(3)).
So if prosecutors seek to rely on “evidence” obtained from a person who has been detained without charge for 14 days, courts may rule that “evidence” inadmissible on the basis that it has been obtained under severe duress and because it was obtained in breach of article 9 of the ICCPR.
Back in 2004, Leonard Hoffmann, a senior UK judge, warned that the “real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.” He might have been talking about Turnbull’s proposal for detention without charge. Once again, Australian politicians are looking to hand another victory to terrorists.
There’s no evidence we need this smoke in our rapidly deteriorating democracy – shame on you Turnbull.
Of course he has to ramp up the war on terror. He has no achievements to point to after 25 months as PM and the LNP has fallen again in 2pp polls. When we thought he might be a civil libertarian we were wrong – misled by the Spycatcher case and the leather jacket wearing appearances on Q&A. ” threaten[ing] “one of the most fundamental safeguards of personal liberty”” does not worry him at all.
Was not all this in place BEFORE Dr Haneef’s case? Special secret judges in closed secret courts with security agency appointed “defence” lawyers drawn from a secret Coalition-loyal panel; exact nature of charges and evidence not to be known to the accused? 14 day detention, renewable by ministerial fiat; a long-sentence gaolable criminal offence to tell anyone at any time in the future where you had been, if you were released without actually being gaoled for the alleged offence?
Like Lear’s Father William, I am old, and memory is not perfect, but my memory is that Dr Haneef was lucky to be taken before a normal Queensland state magistrate who ran an open court.
It was 7 days (talked down from then-AG Daryl Williams’ original 14, ‘cos the Rodent was such a good bloke), but otherwise yes.
I grew up in South Africa during the Apartheid years and saw how a Government went from a sort of democracy to a full on totalitarian state. Complete with all the trappings like Secret Police, informer network, unlimited police power, and full control of the military. All this to ensure the existence of the ruling Afrikander National Party.
What I’m now seeing here in Australia is a repeat of all the measures used in S Africa being slowly introduced. The same excuse is also being used – “we need these measures/laws to deal with terrorist threats”.
Be alert my fellow citizens, this could all come around to bite us peasants and ruin our way of life.
And in South Afrika they didn’t have all the surveillance technology that governments now have. At the same time as normalising detention without charge they want to put everybody’s driver’s licence or passport photo on a nationwide database and use it to trace our prescence in any shopping centre, warehouse or airport, all the time. Of course these details will NEVER be hacked and stolen because, well, because Malcolm says they won’t. Yes, that Malcolm. The one who thinks the law of gravity is Trumped by Australian law. Robben Island here we come, all they need to do is extend the leases on the Manus and Nauru centres.
The ‘N’ in LNP stands for ‘Nazi’. These traitors to Australia and it’s democracy have a deep, deep commitment to Fascism.