Gillian Triggs slams 'scores of laws' threatening fundamental freedoms

Extract from The Guardian

Human rights commissioner delivers forceful warning over counter-terrorism legislation and attacks on rule of law by parliaments across Australia

Gillian Triggs: ‘Australian parliaments have passed scores of laws that infringe our democratic freedoms of speech, association and movement, the right to a fair trial and the prohibition on arbitrary detention.’ Photograph: Joel Carrett/AAP

Daniel Hurst Political correspondent

@danielhurstbne

Saturday 6 June 2015 00.01 AEST

Australian parliaments have passed “scores of laws” that threaten fundamental rights and freedoms, Professor Gillian Triggs has said, pointedly warning MPs to uphold the rule of law as they prepare to debate extraordinary ministerial powers to revoke citizenship.
In a forceful speech, the president of the Australian Human Rights Commission argued parliaments had failed to protect democratic rights and many politicians were “breathtakingly inconsistent” in supporting the rule of law.
And she warned that counter-terrorism laws introduced with “unseemly haste” were likely to have a chilling effect on free speech and privacy.
Triggs’s intervention comes amid intense debate about executive overreach as the government prepares laws to give the immigration minister the power to strip dual nationals of their Australian citizenship if they are suspected of involvement in terrorism.
The speech is likely to inflame Triggs’s already strained relationship with the Abbott government, which has previously said it had lost confidence in the Human Rights Commission chief over her handling of an inquiry into children in immigration detention.
Triggs referred to the 800th anniversary of Magna Carta – which she said had “symbolic power” – as she raised concerns that the supremacy of the law over the executive government was “under threat in Australia’s contemporary democracy”.
“Over the last 15 years or so, the major political parties have agreed with each other to pass laws that threaten some of the most fundamental rights and freedoms that we have inherited from our common law tradition,” she told an audience at the Human Rights Law Centre in Melbourne on Friday evening.

These laws undermine democracy, especially in granting powers to the executive that aren't subject to judicial scrutiny

“For, over the last decade, particularly since the attack in 2001 on the twin towers in America, Australian parliaments have passed scores of laws that infringe our democratic freedoms of speech, association and movement, the right to a fair trial and the prohibition on arbitrary detention.
“These new laws undermine a healthy, robust democracy, especially if they grant discretionary powers to the executive government that are not subject to judicial scrutiny.”
Triggs said the expansion of ministerial powers represented a “growing threat to democracy” and she cited numerous examples of executive overreach including:

• Powers to detain indefinitely various classes of individuals, including refugees and asylum seekers, those with infectious diseases, those subject to mandatory admission to drug and alcohol rehabilitation facilities and the mentally ill;
• The holding of four Indigenous men with intellectual and cognitive disabilities for years in a maximum security prison in the Northern Territory even though “each complainant had been found unfit to stand trial or found not guilty by reason of insanity”;
• The indefinite detention of asylum seekers and refugees including children because of adverse security assessments “without meaningful access to legal advice or judicial review”;
• The reduction of freedom of association from Queensland’s “anti-bikie” laws;
• Constraints on judicial power to assess individual circumstances due to “a spate of mandatory sentencing laws”.

Triggs also spoke at length about the significant expansion of counter-terrorism powers in Australia on the grounds of community safety, arguing the strength of the rule of law was “more truly tested when security is threatened than in times of peace”.
“To the extent that Australia is threatened by terrorism, the need to protect our traditional liberties and freedoms assumes an even greater urgency,” she said.
“Many laws introduced with unseemly haste before Christmas in the name of national security go well beyond what might be deemed to necessary, creating a chilling effect on freedom of speech and the press and breaching the right to privacy.”

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A detention centre on Nauru. Triggs also used the speech to criticise the indefinite detention of asylum seekers and refugees because of adverse security assessments from Asio, without any course of meaningful appeal. Photograph: Remi Chauvin for the Guardian

Referring to the data retention laws passed with bipartisan support in March, Triggs said it was curious that a “journalist information warrant” was required to access the call logs of a reporter but such a warrant was not needed for agencies to look at other citizens’ metadata.
“As the metadata will be collected in respect of most of the 23 million Australians, and those involved in terrorism or paedophilia are very few, it might be said that the act employs a sledgehammer to crack a nut,” she said.
Triggs also raised concerns that accused persons would face an evidentiary burden to defend themselves against a 10-year prison sentence for entering “declared areas” listed by the foreign affairs minister under the Foreign Fighters Act.
She said the same act introduced a new offence of advocating terrorism, “an imprecise crime whose scope may cover, for example, opposing the Assad regime in Syria or supporting Palestinian efforts to gain statehood”.
Other national security laws passed last year created an offence punishable by up to 10 years in jail for disclosing information about a “special intelligence operation”, which was likely to “have a chilling effect on legitimate public debate about security operations”, Triggs said.
“The overreach of executive power is clear in the yet-to-be defined proposal that those accused of being jihadists fighting against Australian interests will be stripped of their citizenship if they are potentially dual nationals,” she said.
“This proposal strikes at the heart of Australia as a largely migrant nation. Not only may this idea violate Australia’s international obligation not to render a person stateless, but also the decision may be at the discretion of a minister, without recourse to judicial processes.
“This proposal is not new. It follows a bill introduced last year to give the minister discretion to revoke citizenship for fraud or misrepresentation, or where the minister is ‘satisfied’ that a person is not of good character, all without trial or conviction. The debate, it seems, is between the subjective suspicions of a minister, versus an evidence-based determination by a judge according to established rule of law.”

The Coalition has faced criticism from legal experts over its citizenship proposals, ahead of the introduction of a bill during the next sitting of parliament that would allow the immigration minister, Peter Dutton, to target dual nationals.
The government deferred a decision on a related proposal to allow the minister to also revoke the citizenship of sole nationals who might be able to apply for citizenship elsewhere, following a cabinet backlash.
The prime minister, Tony Abbott, said the government subscribed to the “very clear principle” that “anyone who raises a gun or a knife to an Australian because of who we are has utterly forfeited any right to be considered one of us”.
But the criteria and procedure for such ministerial determinations remains unclear because the legislation is yet to be released.
Dutton suggested on Friday that affected persons could apply for a judicial review on limited grounds.
Asked whether the review would apply only to the process rather than the substance of the claims against the person, Dutton said: “It relates to that part of the decision, you’re right, and the government’s not going to have the court second-guessing ministerial decisions.”
Before she delivered her speech on Friday about the need for parliaments to “meet their obligations as a check on executive government”, Triggs was strongly criticised by Dutton for earlier comments about “the consequences” of turning asylum-seeker boats back towards Indonesia.
She was reported by the Australian newspaper to have said: “Is it any wonder that Indonesia will not engage with us on other issues that we care about, like the death penalty?”
Triggs’s office said she was reflecting on the death penalty in the region broadly, rather than specific cases, but Dutton said it was an “outrageous slur” to link the death of two of the Bali Nine drug smugglers to Australia’s asylum seeker policy.