Two Attorneys-General, counter-terrorism and liberty

by Michael Walton
Committee Member, NSW Council for Civil Liberties

Federal Attorney-General, Philip Ruddock, has taken to quoting the Universal Declaration of Human Rights (‘UDHR’) to support his government’s national security legislation. He has also taken to quoting the Canadian Attorney-General, Irwin Cotler, in support of Australia’s counter-terrorism laws. In both cases, how Mr Ruddock quotes these sources reveals a lot about what underpins the anti-terrorism laws being debated in Canberra this week.

On numerous occasions over the last 18 months, Mr Ruddock has quoted Article 3 of the UDHR in speeches, interviews and doorstops. For example, in August 2004 Mr Ruddock told a legal working group on counter-terrorism that “Article 3 specifies that governments have a responsibility to protect people’s right to life, their safety and their security”. In May this year the Attorney-General said in a radio interview that “Article 3…speaks of the state’s obligation to provide for the right to life and personal security and safety of its people”.

But Article 3 of the UDHR does not guarantee life, safety and security. This is what it actually says:

"Everyone has the right to life, liberty and security of person.”

Mr Ruddock leaves out the fundamental right to liberty.

This is more than a slip of the tongue. Occasionally Mr Ruddock accurately quotes Article 3, but then places a disturbing spin on it. For example, in May last year Mr Ruddock correctly cited the UDHR, but then went on to paraphrase it like this: “If we are to preserve human rights then we must preserve the most fundamental right of all - the right to life and human security”. Again, liberty does not rate a mention.

More recently, Mr Ruddock has been quoting Article 3 in the context of a speech delivered by the Canadian Attorney-General, Irwin Cotler, in February 2005 to the Canadian Senate’s Special Committee on their Anti-Terrorism Act. Before entering politics, Mr Cotler had a distinguished career as an international human rights lawyer. Perhaps his most famous client is Nelson Mandela.

In October 2005, when addressing the Australian Federation of Islamic Councils, Mr Ruddock quoted from Mr Cotler’s speech: “terrorism constitutes an assault on the security of a democracy and the most fundamental right of its inhabitants – the right to life, liberty and security of person”.

But Mr Ruddock omitted to point out that Mr Cotler went on to say that:

“the enforcement and application of counter-terrorism law and policy must always comport with the rule of law. Minorities must never be singled out for differential and discriminatory treatment. That torture must always and everywhere be prohibited. That counter-terrorism must not undermine the very human security we seek to promote and protect by that counter-terrorism.”

Again, what Mr Ruddock leaves out says a lot about his vision for our national security.

Mr Cotler’s approach is a very measured one. In his speech to the Senate committee, he outlines eleven ‘foundational principles’ that underpin Canadian anti-terrorism law. His analysis is far more intellectually sophisticated and rigorous than anything offered by Australian politicians (of any flavour).

For example, Mr Cotler argues passionately for zero-tolerance of terrorism. He berates the moral relativism of the often-heard argument that “one person’s terrorist is another person’s freedom fighter”. He very eloquently reminds us that freedom fighters do not blow up trains and buses full of commuters, or capture and slaughter school children.

He is just as passionate when arguing that the legislative response to terrorism must be proportional to the threat. That there must be a rational basis for anti-terrorism laws and they should intrude on rights as little as possible. The effect of the laws should not outweigh their purpose.

In stark contrast to this, in a speech in Washington DC in July 2005, the Australian Attorney-General hinted to his audience that he would rather be accused of arresting too many people than become ‘the subject of accusations from grieving relatives that it was in my power to do more to protect their loved ones’.

Australia deserves better than this. We do not have to accept Mr Ruddock’s philosophy of security without liberty or proportionality. There are principled alternatives. We need a rigorous and lengthy debate in this country before Parliament accepts the Attorney-General’s flawed anti-terrorism legislation.

Finally, the point should not be lost that in Canada anti-terrorism laws can be subjected to true judicial review against the high standard of a constitutional Charter of Rights and Freedoms. In Australia, where we do not have a Bill of Rights, this much-needed check and balance against parliamentary haste and excess is a mere shadow of Canadian law. Our legal system falls far short of international best practice and every Australian is more vulnerable for it.

See also:

Date: 30 November 2005