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Wednesday, 29 October 2014

Senate Moves On Foreign Fighters Bill Despite Human Rights Risk |

Senate Moves On Foreign Fighters Bill Despite Human Rights Risk |

Senate Moves On Foreign Fighters Bill Despite Human Rights Risk

By Wendy Bacon

new report warns the bill could allow breaches of human rights. It may
also reverse the presumption of innocence, writes Wendy Bacon.

parliamentary Committee including Coalition, Labor and Greens senators
has found that a security bill expected to be passed by the Senate today
potentially violates human rights in hundreds of ways and recommends
that it needs further scrutiny before becoming law.

The Parliamentary Joint Committee on Human Rights report that was
tabled yesterday calls on the government to respond in a detailed way to
its many human rights concerns about the Counter-Terrorism Legislation
Amendment (Foreign Fighters) Bill. Its report is an embarrassment for
Liberal and Labor Senators who are expected to combine today to pass the

The bill was approved last week by the Joint Committee into
Intelligence and Security despite complaints by Committee members that
insufficient time had been provided for a thorough inquiry. The Joint
Committee excludes the Greens who are represented by Senator Penny
Wright on the Human Rights Committee. The Greens, Liberal Democratic
senator David Leyonhjelm and Independent senator Nick Xenophon voted
against the bill in divisions last night.

Despite its name, the bill criminalises far more than just fighting
for rebel foreign forces. It involves more than 50 changes to 19
separate acts of parliament. It grants powers to declare zones in
foreign countries out of bounds for travellers, cancel welfare payments
and visas on the basis of secret ASIO security assessments and for the
secret cancellation of passports. It further strengthens policing powers
that the Committee finds already potentially violate human rights.

The Human Rights Committee came into being as a result of legislation
passed by the Gillard government in 2011. It was intended to be a small
step to providing protection for human rights in Australia, which
stands out internationally for its lack of constitutional protection or
bill protecting human rights.

The Committee, which is chaired by LNP senator Dean Smith, was
critical of the approach used by the Attorney General's Department in
dealing with potential human rights violations. The bill's explanatory
memorandum dismisses them by simply stating they are “proportionate”
given the threat of terrorism. The Human Rights committee calls on
Attorney General George Brandis to provide more detailed argument and
empirical evidence.

President of the NSW Council for Civil Liberties Stephen Banks told
New Matilda that the Human Rights Committee report shows the approach
taken by the Attorney General's department in its consideration of human
rights was a “farce”.

He said that the Joint Committee's recommendations for amendments,
which Attorney General George Brandis has accepted, did nothing to
overcome “fundamental flaws” in the bill that would lead to innocent
people being detained without being charged. He said it is a mistake to
accept that the bill only applies to potential terrorism offences as
some of its provisions applied to any offence attracting a prison
sentence of more than seven years.

The Human Rights Committee report provides further support to the
submissions made by Civil Liberties Councils, the Australian Human
Rights Commission, Muslim legal rights groups, legal academics, and
lawyers' groups who argued that sections of the bill should be rejected.
Some have even argued that it could increase risks of terrorism by
further alienating excluded individuals potentially attracted to
committing violent acts.

The Committee report warns sections of the bill that allow the
Foreign Minister to declare a 'no go zone' are a threat to human rights.
A person can be jailed for up to ten years unless they can prove they
travelled to the zone solely for specific legitimate purposes that do
not include business or religious purposes.

Although an amendment provides that whole countries cannot be barred,
up to 90 per cent of several countries in the Middle East and elsewhere
could be barred if a banned terrorist group is determined by the
Australian government to be operating there.

Many other provisions also raised Committee concerns. For example in
2005, the Crimes Act was amended to allow powers to stop, search,
question and seize goods at airports. The committee describes these
powers, which were passed before the Committee for Human Rights came
into being, as “highly invasive” and “coercive”.  It finds that before
such powers are further extended, and in some cases strengthened,
original powers should be assessed for their compatibility with human

The stop, search, question and seize good powers involve a little
known procedure by which a Minister can declare a 'prescribed security
zone' if he or she considers it will help prevent a terrorist act. Once a
zone is declared everyone in it is subject to the stop, search and
question powers regardless of whether there is any suspicion that they
are involved with any criminal acts.

The Human Rights Committee is critical of  “generalised statements”
that are used to justify extending powers which it argues breach the
Attorney General's own guidelines for the preparation of statements
dealing with human rights compatibility. It finds that "more information
and analysis is required to establish that the stop, question, search
and seizure powers are in a pursuit of a legitimate purpose”.

The Committee repeatedly calls for more evidence that the existing
powers are insufficient to prevent serious threats to Australia's
national security interests.

It is significant that a cross party committee should unanimously
raise similar concerns to those that opponents of this Bill and a range
of civil and legal groups have repeatedly argued during more than a
decade in which laws have been passed which restrict the rights of
Australian citizens. 

As Senator Wright told parliament yesterday, "In the face of fear
about terrorism the first failure of this government, in carrying out
its duty to protect the population of Australia, is in not providing an
adequate opportunity for this parliament and the Australian community to
even begin to understand some of the most significant counter-terrorism
changes in our lifetimes.”

“This has not happened. This is a failure to uphold and protect some
of the most dearly held tenets of the democracy that we cherish—in a
sense, that we are fighting for here. This is irresponsible and

“Already, by playing the national security trump card, by rushing
these laws through parliament in the space of two days in the Senate,
with inadequate time to consider them and before they have been properly
scrutinised by the very committee of this parliament established to
safeguard our human rights—the Parliamentary Joint Committee on Human
Rights—it is possible to say that this government is already allowing
terrorism to win, or to start to win.”

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