After an unsatisfactory conclusion, Ugur Nedim questions the effectiveness of the ALRC inquiry into the impact of new laws on our civil liberties.
Many are appalled by the Abbott government’s brazen erosion of our civil liberties since coming to power in 2013. In particular, the government has been accused of attacking freedom of speech through a number of pieces of legislation, most notably a range of provisions contained in anti-terrorism laws and the recently passed Australian Border Force Act 2015.
The Act prohibits detention centre workers from speaking out against human rights abuses. A recent review by the Australian Law Reform Commission (ALRC) revealed the impact of such laws on civil liberties and human rights in Australia.
Sadly – but not surprisingly – the ALRC identified several current Commonwealth laws that undermine basic democratic liberties such as freedom of speech, freedom of association and the right to a fair trial.
The scope of the inquiry
The ALRC inquiry did not come about through the efforts of individuals, organisations or political parties; ironically, it was launched after a request by the Commonwealth Attorney-General, George Brandis. Brandis pioneered metadata retention laws that give numerous law enforcement agencies the power to access enormous amounts of personal data without a warrant.
He also came under fire for attempting to overhaul section 18C of the Racial Discrimination Act and for his support of amendments to the Citizenship Act, which allows dual nationals to be stripped of their Australian citizenship if the Minister of Immigration claims that they are suspected of a terrorism-related offence.
Brandis asked the ALRC to identify “Commonwealth laws that encroach upon traditional rights, freedoms and privileges,” such as freedom of speech, freedom of association, the right to a fair trial and the presumption of innocence. He asked that they critically examine these laws “to determine whether the encroachment upon those traditional rights, freedoms and privileges is appropriately justified.”
What did the ALRC find?
The ALRC concluded that several Commonwealth laws unjustifiably infringe upon individual rights and liberties.
In relation to freedom of speech, the ALRC found that a number of sections of the Commonwealth Criminal Code breached these freedoms – including section 80.2C, which makes it an offence to advocate terrorism by counselling, procuring, encouraging or urging a terrorist act.
Upon reaching this finding, the ALRC considered submissions by the Human Rights Committee (HRC) that raised concerns about the breadth of the section. They also questioned whether it was necessary, as other laws already outlawed “speech that incites violence.” In particular, the HRC was concerned that the section would unjustifiably criminalise “…legitimate advocacy of regime change by outlawing any form of speech which supported unlawful behaviours – including politically motivated protests, or protests which voiced support for politically oppressive regimes.”
Other organisations, such as the Gilbert and Tobin Centre of Public Law, also expressed the view that section 80.2C unjustly limits freedom of speech by reducing “the capacity for individuals to voice their views and opinions on terrorism and overseas conflicts.” The Centre cautioned that these laws would unfairly target and alienate the Australian Muslim community. The ALRC also considered submissions from Brandis himself, in which he admitted that cold, hard evidence of “advocating terrorism” is not needed before a person can be prosecuted under the section. Brandis justified this concerning situation by saying that those who support terrorism could be “sophisticated” about the methods and language they use.
This effectively means that, as suggested by the HRC, generalised statements and actions may indeed form the basis of a criminal prosecution under section 80.2C. Section 42 of the Australian Border Force Act 2015 was also found to unjustifiably and dangerously impact upon freedom of speech. That section states “entrusted persons” – which encompasses anyone working at a detention centre, including doctors and other contractors – could be imprisoned for up to 2 years if they make a record of, or disclose, “protected information.” According to the Law Council, which made submissions to the ALRC, section 42 infringes upon basic notions of freedom of speech because it does not contain a provision to the effect that “public interest” disclosures can be made without fear of prosecution.
The Council suggests the section should also require that a disclosure be likely or intended to cause harm to an identified essential public interest before a prosecution can take place.
Reversing the burden of proof
The ALRC also considered the impact of laws that reverse the burden of proof in criminal cases. Normally, the prosecution is supposed to have the burden of proving beyond a reasonable doubt that the defendant committed a criminal offence.
Indeed, this is a well-established legal principle based on notions of procedural fairness and justice, however, a spate of new laws have reversed this burden so that the defendant must prove their innocence before they are found not guilty. Many of these laws relate to terrorism offences – for example, those under the Commonwealth Criminal Code that concern membership of a terrorist organisation, getting funds to or from a terrorist organisation and entering or remaining in a declared area. Numerous submissions were received by the ALRC questioning the necessity and justification for reversing the onus of proof.
The Commission ultimately found that such laws “may be seen as interfering with the principle that a person is presumed innocent until proved guilty according to law.”
One would hope that the ALRC’s findings inspire those in power to amend laws found to unjustifiably breach basic human rights and liberties. Despite identifying numerous violations, the ALRC’s solution was to recommend a “further review”, rather than to make solid recommendations for changing the infringing laws.
This is disappointing and raises concerns about whether the inquiry was just for show rather than a genuine attempt to identify and rectify unjustified violations of human rights and liberties.