Page 1350 - Week 05 - Tuesday, 9 May 2006
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Before turning to that single standard, the point is well made by Butler that the words of section 28 have a bearing on how that standard should be formulated and applied. First, it speaks of a derogation being a “reasonable” limit to the right. This is a significant point of difference here with other human rights which require that a derogation be “necessary”. Butler points out … that the European Court of Human Rights recognised in an early case that the word “necessary” does not contain the “flexibility of such expressions as ‘reasonable’. Hence ‘necessary’ and ‘reasonable’ need not necessarily be equated, and this can have substantive effect on one’s approach to limitations.”
I use those quotes to emphasise my point that, by removing those tests or weakening those tests, the opportunity to infringe upon civil liberties is greater. I must say, at the same time, that part of our human rights obligation is to protect our community, and we have to find reasonable ways forward to do it. But it is something that causes me some great discomfort when you start tinkering with the human rights of our citizens to achieve an aim which, on the evidence in Australia, is yet to be shown clearly. Let me go back to Ms Eastman’s advice, and I quote from paragraph 63:
In the context of the Human Rights Act, “necessity” is the proportionality test. The preamble explains why the Bill is necessary but there is very little publicly available evidence to explain the nature of the threat terrorism poses to Australia and/or the ACT as at late 2005 and into the future.
Paragraph 64 states:
Further there is little, indeed no, publicly available evidence that with respect to known threats that the use of preventative detention orders and prohibited contact orders are necessary and would be appropriate to address the particular threats. Likewise, there is no information which would allow one to comfortably conclude that the means of preserving evidence after a terrorist attack will require a person to be detained within the immediate 28 days after an attack. This assumes that the usual powers for preserving evidence of criminal conduct would not be either available or effective. I am not sure how such a conclusion could be reached in light of the existing means available to police forces for investigating criminal conduct. The absence of any objective information which may be relied upon to show the laws are necessary makes the task of determining the Bill’s compatibility with the Human Rights Act very difficult.
In due course, Ms Eastman forms the conclusion, in paragraph 69, that the bill is compatible with the relevant rights in the Human Rights Act. But she points to the difficulty of it. That is why it is important to express one’s concern about tampering with the human rights of our citizens, albeit for the noble cause of protecting our citizens. Is it not always the argument, though, that we hear from those who want to diminish human rights that we need to protect our citizens by diminishing the human rights of others?
Mr Mulcahy: That is life.
MR BERRY: Mr Mulcahy interjects, “That is life.” Perhaps that is. But we have got to ensure that we take a very reserved position in relation to that; otherwise we will find ourselves in the situation that the citizenry in the countries of some of history’s greatest
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