Senate Passes Foreign Fighters Bill Despite Human Rights Risk

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A parliamentary Committee including Coalition, Labor and Greens senators has found that a security bill passed by the Senate on Wednesday 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 on Tuesday 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.

When put to a vote in the senate on Wednesday only the Greens and senators Nick Xenophon and David Leyonhjelm voted against the legislation.

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.

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 rights.

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 on Tuesday, "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 antidemocratic.”

“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.”

New Matilda

New Matilda is independent journalism at its finest. The site has been publishing intelligent coverage of Australian and international politics, media and culture since 2004.

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