Limitations of a charter of rights in the age of counter-terrorism.

• Jurisdiction: Australia
• Author: Tham, Joo-Cheong
• Date: 01 August 2007

[A central claim made by Australian proponents of a charter of rights like the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('Victorian Charter) is that it will improve the protection of human rights in the field of counter-terrorism. This article provides a critique of this claim by identifying the risk that the Victorian Charter will take a court-centred trajectory--a course that may undermine the protection of human rights. It further argues that comparative arguments, especially those based on the Human Rights Act 1998 (UK) c 42, are problematic. The article concludes by sketching out an alternative to a court-centred approach to the Victorian Charter by drawing upon the idea of a community-based charter of rights.]

CONTENTS I Introduction II Overview of the Victorian Charter III Arguments for a Charter of Rights in the Age of Counter-Terrorism IV Critique A Difficulties with the Notion of a 'Dialogue'. B Dangers of a Court-Centred Charter 1 Valorising Courts and Denigrating Parliaments in the Protection of Human Rights 2 Danger of Legitimising Draconian Counter-Terrorism Laws 3 Danger of Increased Legalisation of Politics C Problematic Comparative Arguments V Concluding Thoughts: The Alternative of a Community-Based Charter of Rights I INTRODUCTION

Since the 11 September 2001 attacks in the United States, the Australian Parliament has enacted a far-reaching set of counter-terrorism laws. (1) These laws brought into existence a range of 'terrorism offences' (2) which may result in conviction even when there is no violent intention or intention to cause damage. Broad powers have been conferred upon Commonwealth Ministers to proscribe 'terrorist' groups. Groups can now be listed by virtue of a decision of the Foreign Minister with the effect that it is illegal to use or deal with the assets of the listed person or entity. (3) It will also be an offence directly or indirectly to provide assets to a listed person or entity. (4) Regulations can also be passed under the Criminal Code Act 1995 (Cth) sch 1 ('Criminal Code') listing an organisation as a 'terrorist organisation'. (5) Once listed, a particularly broad set of 'terrorism offences' will apply to the organisation, which essentially impose criminal liability upon the entire group and persons who engage in certain forms of association. (6)

Unprecedented powers have also been conferred upon security and police organisations. Since mid-2003, the Australian Security Intelligence Organisation ('ASIO') has had powers to compulsorily question and detain persons suspected of having, information related to a 'terrorism offence'. (7) Such persons can be detained for up to a week in largely incommunicado circumstances. (8) With the passage of the Anti-Terrorism Act [No 2] 2005 (Cth), the Australian Federal Police ('AFP') acquired the ability to secure preventative detention orders (9) and control orders. (10) Both types of order can be issued in some situations against persons not suspected of any crime. (11)

The brunt of these laws has been felt most severely by Arab and Muslim Australians. All persons charged so far under 'terrorism offences' have been Muslim, (12) and all but one of the groups banned as 'terrorist organisations' under the Criminal Code are self-identified Muslim organisations. (13) Not surprisingly, a recent review of Australia's counter-terrorism laws found that they have contributed to Muslim citizens experiencing 'a considerable increase in fear, a growing sense of alienation from the wider community and an increase in distrust of authority'. (14)

The radical changes effected by these laws (15) and their impact upon Muslim communities have increased calls for a bill of rights. Members of the Gilbert + Tobin Centre for Public Law, for instance, have argued that 'due to the lack of a national Bill of Rights ... the "balancing" process is far from transparent and the dynamic between security and fights is rather one-sided.' (16) More importantly for the purposes of this article, the enactment of the Victorian bill of rights, the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('Victorian Charter') (17) in July 2006 was partly justified on the basis that it would increase the protection of human fights in the 'War on Terror'. (18)

As a means of improving the protection of human rights in the area of counter-terrorism, a bill of rights like the Victorian Charter is simply one out of a menu of strategies. Neither a commitment to human rights nor a belief that Australia's counter-terrorism laws are unjust necessarily translates into support for a bill of rights. As Jeremy Waldron has pointed out, a proponent of human fights could quite reasonably come to the view that human rights should not be legally codified. (19) They could be of the view that legal strategies like a bill of rights are inferior compared with political strategies of mobilisation. Even if there was a preference for legal strategies, this does not necessarily lead one to support a bill of rights. For instance, opponents of counter-terrorism laws could simply insist that these laws be repealed. (20) One can very well agree with George Williams' observation that 'we do need better formal legal protection for human rights' (21) and yet not endorse his preference for a charter of rights.

There is then no necessary reason why those campaigning against draconian counter-terrorism laws should support a charter of rights. Indeed, close scrutiny of key arguments made by proponents invites scepticism. A central claim by proponents is that a charter of rights will improve the protection of human rights in the field of counter-terrorism.

This claim, however, often rests upon suspect comparative arguments. Proponents of a charter of rights also typically neglect the dangers of a court-centred Charter. When a charter of rights takes this trajectory, courts and judges are seen as the only protectors of human rights. Several consequences will follow from this assumption: legal decisions become the key material in interpreting and articulating human rights, and legal expertise will be seen as necessary for human rights literacy. Such a trajectory threatens to impair the protection of human rights in the War on Terror. With a bill of rights like the Victorian Charter, the prescribed cure might very well worsen the disease.

It is the principal aim of this article to highlight the limitations of the Victorian Charter in protecting human rights in the area of counter-terrorism. It does so by, first, providing an overview of the Victorian Charter. The following Part then sets out the arguments that such an instrument would lead to greater protection of human rights in the War on Terror.

Most of the article is devoted to a critique of these arguments. This critique begins by spelling out some of the difficulties with the notion of a 'dialogue'; a notion that is central to arguments for the Victorian Charter. It then identifies the risk that the Victorian Charter will take a court-centred trajectory and goes on to explain why such a course may undermine the protection of human rights. The article explains how the Victorian Charter potentially marginalises other more effective mechanisms for protecting human rights, notably, parliamentary methods of protection. Moreover, deference by the courts to the executive on questions of national security may legitimise excessive counter-terrorism laws. A court-centred trajectory will also likely result in an increased legalisation of human rights politics.

The last part of this critique details how comparative arguments, especially those based on the Human Rights Act 1998 (UK) c 42, are problematic. By way of conclusion, the article sketches an alternative to a court-centred approach to the charter of rights by drawing upon the idea of a community-based charter of rights.

Some final remarks should be made by way of introduction. This article is focused on the Victorian Charter and arguments made in support of its enactment. This choice has been made because of the significance that the Victorian Charter will have in debates on whether there should be a bill of rights at a national (22) or state level. Since the Victorian Charter is the first state bill of rights in Australia, (23) Williams, its main architect, is correct to state that the Victorian Charter 'sets a very clear path for the nation'. (24) The question is whether this is a path that Australia should take.

II OVERVIEW OF THE VICTORIAN CHARTER

Most fundamentally, the Victorian Charter is a legal instrument. This instrument is limited in terms of entities bound, with its scope generally confined to governmental bodies, notably, the Victorian Parliament, courts and 'public authorities'. (25) It is also confined to civil and political rights. (26) Importantly, the legal recognition of these rights is accompanied by the ability to limit these rights. The title of s 7 of the Victorian Charter, 'Human Rights--What They Are and when They May Be Limited', neatly captures this point.

The Victorian Charter relies upon a range of institutional mechanisms to protect human rights. Parliamentary mechanisms are integral, as a statement of compatibility or incompatibility with the rights recognised in the Victorian Charter is mandatory whenever a Bill is introduced into the Victorian Parliament. (27) Further, the Scrutiny of Acts and Regulations Committee is required to consider any Bill and report on its compatibility with these rights. (28)

While judges will not be able to strike down laws that they view as incompatible with rights codified in the Victorian Charter, courts will have a key role in its implementation. (29) Once the Victorian Charter comes into full effect (many of its provisions are not operative until 2008), Victorian courts will be required to interpret statutes in a way which is compatible with the rights provisions of the Victorian Charter as far as possible...