2005 Media Releases
Monday, 28 November 2005
Study concerned about anti-democratic nature of new terrorist laws
‘Laws made in haste can be bad laws that harm or inadvertently catch innocent people in their operation. The risk of overreaction may well be the very dynamic terrorists rely upon …’
Accordingly, ‘terrorism legislation before parliament should be repealed as current criminal legislation adequately covers offences and procedure in relation to terrorist acts’.
These claims come in a controversial La Trobe Law students’ and West Heidelberg Community Legal Service Discussion Paper titled: ‘The Impact of the Law and Social Policy on the Community: Current and Proposed Terror Legislation’.
A draft of the Discussion Paper was forwarded to the Senate Legal and Constitutional Affairs Committee Inquiry which releases its own recommendations today.
The 50 -page report, written by La Trobe Law students, warns that the reversal of the onus of proof in the new legislation is ‘ominously unjust’ – and that the secrecy provisions will encourage lawlessness as a result of a ‘significant diminution of public discussion’.
It says the new provisions reduce scrutiny of the investigative process, a primary antidote to subvert illegality.
‘The media are also affected as it brings into the process the criminalisation of those who provide information to journalists and the possibility of media being prosecuted for publication of those views.’
The report claims existing laws cover terrorism and terrorist acts, and are sufficient to protect our society. These include the Crimes Act, Criminal Code, AFP legislation, and maritime and aviation legislation.
The report was written by La Trobe Law students in the final years of their degree, Elise Meredith, Diana Nedelkovska, Visalini Raveendran and Emily Sheales as part of their clinical placement at the West Heidelberg Community Legal Service.
Clinical Law Lecturer, Ms Elizabeth Curran, says the report is the latest in a series that began in 2002 as part of the La Trobe Law course to encourage student research teams to contribute to the law making process and public policy.
The reports are based on concerns arising from case-work while on placement at the legal service or from associated problems identified as relevant to members of the West Heidelberg community and the community more broadly.
The report’s major recommendations are:
1. The terrorism legislation should be repealed as the current criminal legislation adequately covers both offences and procedure in relation to terrorist acts.
Failing this, it recommends the following:
2. In order to effectively balance the nation’s security with the human rights of all Australians, a Bill of Rights should be introduced, bringing Australia into line with every other democratic Western country.
3. ASIO should remain an intelligence gathering organisation, leaving the Australian Federal Police in charge of questioning, searching and seizing. Greater communication is required between our intelligence gathering agencies and our police in order to effectively combat terrorism.
4. Greater transparency of the processes and procedures of ASIO is required in relation to questioning and detention to prevent abuse of power. This could be achieved by an independent body monitoring the processes.
5. The lawyer’s role as to access to their client, presence and participation in an interview should not be restricted in any way. The concern of highly confidential information could be combated through an agreement between ASIO and lawyers as to what information during the interviews and processes constituted issues of national security, provided lawyers are not excluded at any part of the process. Lawyers should not be restricted from complaining about ASIO’s processes and procedures.
6. Section 34G (4) and (7) of the ASIO Act should be repealed as under our criminal justice system there should not be a reverse onus of proof upon the defendant.
7. Adequate judicial review on both the law and the merits of a case should be strengthened and remain in the context of judicial structures rather than in the precariously described “judges in the personal capacity.”
Two other reports, on the Control of Weapons Act and Reckless Lending, will be released in December.
For further information:
Liz Curran, Email: e.curran@latrobe.edu.au.
For a copy of the report Email: publicaffairs@latrobe.edu.au or Tel: (03) 9479 2316.