Article from The Melbourne Age, August 27 2000
Rights trampled in an Olympic dash
By MICHAEL GORTON
Sunday 27 August 2000
The Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2000, now before the Federal Parliament, gives the Australian military enormous powers to intervene in civil disturbances, including the use of weapons, seizure of property, entry to premises and body searches, including "an examination of the person's body cavities". The legislation is in response to the threat of terrorism arising from the Olympics and the Economic Summit in Melbourne next month. It assumes that civilian authorities (the police) will not be enough.
However, the powers granted under this legislation are unprecedented, and the safeguards, expected in a modern democracy, are clearly inadequate.
Legislation should not be made for the day, but should be made for all of the days and for all possible circumstances and contingencies. It is worth noting that it is this type of legislation that oppressive regimes (such as Burma and former Soviet governments) have used to legitimise abuse of power, standover tactics and breach of civil rights. How many times recently have we seen military intervention (Indonesia, Timor, the Balkans, Africa) where the military are unrestrained but are said to be acting under "legislative authority"?
Australia has always had a history of civil protest, the right to complain and march without fear of military intervention. Even in the wildest days of the Vietnam Moratorium marches there were no suggestions that the military, with arms, would intervene. Indeed, the threat of military intervention in industrial disputes in the past has always been hotly contested.
The power to use military force under this legislation need only be authorised by the Prime Minister, the Minister for Defence and the Attorney-General. While these three people must agree before force is used, they will all be from the same government, and presumably will all be of the same mind. This safeguard gives little comfort. In some circumstances, the military can be used only at the invitation of a state or territory, although there is power for use of military force where Commonwealth interests are at risk.
Australia is not a totalitarian regime. Abuses of power are rare, although some would say they have occurred. This legislation arises from recommendations from the Hope Royal Commission following the Hilton bombing. Even in those darkest days, when the threat of terrorism in Australia was at its worst, it is difficult to imagine circumstances in which civil police authorities would not be able to deal with most issues. However, it must be conceded that there are eventualities which, in the future, might require military intervention. In those cases, most Australians would agree that it should be only as a last resort, only in the direst of emergencies, and only to the minimal extent necessary to restore order or deal with the threat. This legislation does not contain those safeguards.
It is interesting to note that while legislative force is now given to the rights of the military to intervene, and to give immunity for their actions, there is no similar legislation protecting the civil rights that will obviously be negated and removed as a consequence of military intervention.
The government continues to tell us that our civil rights are best protected by the common law. Malcolm Fraser has recently told us that the civil rights of Aboriginal people were trampled on, unceremoniously and without proper recognition. Aboriginal people were detained, their property taken and their children taken without any shred of due process or fair dealing. The common law did not protect them. Malcolm Fraser says that a bill of rights should be revisited.
If this legislation was available, would the Federal Government have been tempted to use it during the maritime strike? There have been other occasions on which a government might have been tempted to use the military rather than civilian police.
The threat of international terrorism is real. The need for such open-ended legislation permitting military intervention and granting immunity is not as clear. Certainly, we can envisage situations where military intervention may be necessary. In those cases, the most substantial of safeguards are required. Other parliamentarians have suggested amendments to the legislation that would increase the safeguards, and give the opportunity for others, including the courts, to review the action of ministers and the military. Greater safeguards to ensure that military forces are clearly under the control of civilian authorities are necessary.
This legislation is being rushed through parliament with the support of both the government and the Labor opposition. The need for speed is attributed to the imminent Olympics. The need to protect our basic human rights and civil liberties (a cornerstone of our way of life) should not be lost or thrown aside in the rush for Olympic gold.
Michael Gorton is chairman of the administrative law and human rights section of the Law Institute of Victoria.
sent in by MT of OZ
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