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October 25, 2005

Australia: Proposed Anti-Terror Laws May be "Unconstitutional"

Earlier, the Australian Broadcasting Corporation transmitted on its "7.30 Report" a feature on the proposed laws against terror activities, which include detaining people who have not committed a specific "crime" may be against the nation's constitution. The following is part of a transcript from that programme:

Proposed counter-terrorism legislation may be unconstitutional

Reporter: Michael Brissenden

KERRY O'BRIEN: Welcome to the program. The Government's plans for a swift and easy passage of its terror legislation may have hit a significant legal hurdle. In fact, the Queensland Solicitor-General says the laws may even be unconstitutional. More than a few constitutional lawyers agree that specifically asking judges and magistrates to help police detain suspects who may have committed no offence would challenge the whole notion of the separation of powers and would be open to a High Court challenge. The Prime Minister has today agreed to a request from the Queensland Premier for a meeting between Commonwealth and state legal officers to try to find a way through the dilemma. Political editor Michael Brissenden reports.

WITNESS: I can see in front of me a red double-decker bus...

MICHAEL BRISSENDEN: The aftershocks of the London bombings have been felt far and wide. From London to Canberra, this was a terrorist act that blew apart many of our long-held legal and law enforcement certainties. In both countries governments have reacted with a raft of legislative changes and, in both countries, political aspirations have hit significant hurdles. In Britain, it's been the Human Rights Act. Here in Australia, it seems it might be the Constitution itself.

PROFESSOR GREG CRAVEN, CONSTITUTIONAL LAW, CURTIN UNIVERSITY: There are differences between the UK and Australia in a number of varying directions. One is that the UK is subject to certain European-derived rights covenants that we are not, but in the other direction the UK is not subject to a constitutional doctrine of separation of powers and indeed judicial power as we are.

MICHAEL BRISSENDEN: Our government is obviously keen to fast track its legislative response to terrorism. The new ant-terrorism bill is due to be introduced to Parliament next week and unlike the ASIO bill of 2002, that was the subject of three parliamentary inquiries and was dissected and scrutinised for 12 months. These changes will be subjected to a few days arbitrary inquiry by a Senate Committee before they are voted into law. The concern about the impact on human rights and freedom of expression have been widely canvassed in the past few weeks, but even putting those to one side, there are now serious legal concerns emerging as well.

Posted by Giraldus Cambrensis at October 25, 2005 5:57 PM

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