Amnesty Issues Australia Anti-Terror Laws Report
General Concerns: This Bill introduces two powers unique to Australia in times other than those of declared war that is, preventative detention and control orders. Each of the powers involve either the imprisonment or a severe restriction on a person’s liberty where that person faces no criminal charge.
Freedom from arbitrary arrest and detention is a fundamental right contained in Article 9 of the International Covenant on Civil & Political Rights (ICCPR). It is a requirement of a system founded on the rule of law which includes the burden of proof, the standard of proof and the rules of evidence applicable to the criminal justice system which has been developed over 800 years in order to reduce the risk of innocent individuals being convicted and punished. The abolition of the rules, burden and standard in this new system removes these protections. It renders vulnerable innocent people to imprisonment particularly those people who have been made vulnerable by the climate of fear currently prevalent.
Amnesty International is opposed to any government detaining a person unless that person is charged and prosecuted for a recognisable criminal offence. Article 14(2) of the ICCPR reads:
“Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law”.
Article 2(3)(a) of the ICCPR reads:
“To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.”
There is no doubt that the purpose of the new provisions for preventative detention and control orders refer only to those who face no criminal charge. It goes without saying that if there was sufficient evidence to charge they would be charged.
It is impossible to reconcile the fundamental notion of persons in our community being presumed innocent with the outcome of the application of either of the provisions relating to preventative detention or control orders.