Should Terrorism Suspects Get the ‘Benefit of the Doubt’?

In the wake of the first report into the Lindt café siege, Prime Minister Tony Abbott made an anticipated speech on Monday about law reform measures that the nation will adopt in its fight against terrorism.

On the same day, Justice Minister Michael Keenan discussed possible anti-terrorism approaches on the ABC’s AM program with Michael Brissenden.

Both speeches shared a common thread: that suspected terrorists have enjoyed the ‘benefit of the doubt’ for too long, and in light of the growing threat posed by ISIS, the line on individual rights needs to be ‘redrawn.’

But how will proposed changes to the law impact upon the fundamental tenets of our criminal justice system?

The presumption of innocence

Several of our previous blogs have emphasised the importance of the presumption of innocence; a principle which says that people who are accused of crimes are presumed to be innocent until and unless the prosecution is able to prove that they are guilty.

This presumption has long been accepted as a fundamental cornerstone of our criminal justice system.

It is also enshrined in certain international treaties, including Article 14(2) of the International Covenant on Civil and Political Rights (the “ICCPR”).

Various human rights organisations, including the United Nations, have emphasised the vital importance of the principle, cautioning that any erosion will result in human rights breaches against the innocent.

What Has the Prime Minister Proposed?

The Prime Minister’s speech essentially tied together a number of tough new ‘anti-terror’ proposals that have been under consideration for some time.

Amongst other things, these include stripping suspected terrorists of welfare payments and citizenship, introducing new data retention laws, increasing funding for anti-terrorism bodies,and creating new offences for vilifying, intimidating or inciting hatred.

The Prime Minister also discussed the recent appointment of a National Terrorism Co-ordinator to facilitate discussions between security agencies such as ASIO and the AFP.

But whether these tough new measures are justified is a matter of opinion.

The phrase ‘you’ve got nothing to fear if you’ve got nothing to hide’ is often spouted in response to assertions that diluting civil protections gives rise to injustice.

However, it is worth bearing in mind that large numbers of innocent people can fall on the receiving end of heavy-handed law enforcement tactics, including raids, forceful and humiliating arrests, and unfounded criminal prosecutions.

For instance, last year’s counter-terrorism raids, carried out in the middle of the night by hundreds of heavily-armed police on 25 homes across Sydney, resulted in only one person being charged with a terrorism offence.

And ironically, the government’s proposal to establish new offences aimed at ‘Islamic extremists’ who vilify, intimidate and incite hatred seem to be at odds with its previous attempts to repeal provisions in the Racial Discrimination Act that make it an offence to ‘offend, insult, humiliate or intimidate’ an ethnic group.

It is yet to be seen whether these measures will be effective in combating terrorism in the long run, or whether they will simply be a way for the government to strip away civil liberties without adequate justification.

Meta-data retention laws

Concerns have also been raised about proposed metadata retention laws that will allow police to monitor where you are and who you communicate with, without a warrant.

Senator David Leyonhjelm has said that the new laws essentially mean that ‘terrorists win’.

He has cautioned that the proposed laws will be ineffective, stating that ‘Taking away the rights of all the rest of us, sacrificing a little liberty amongst all of us in the interests of safety, it’s never worked.’

Justice Minister Michael Keenan has hit back by saying, ‘I think that Australians understand that if we are going to increase the security environment then that can sometimes impinge on their individual freedoms.’

Can the Presumption of Innocence be Removed?

While the presumption of innocence has long been recognised as a common law right, it is not protected by the constitution, meaning that the government can strip it back if it wishes.

And under Article 4 of the ICCPR, countries may derogate their obligations where there is a ‘public emergence which threatens the life of the nation and the existence of which is officially proclaimed.’

However, decisions to erode the presumption are not permitted to conflict with Australia’s obligations under other international laws, and cannot be used to justify discrimination.

To get around this, the government has sought to reverse the onus of proof in some cases – in other words, to create laws that require defendants to prove their innocence, rather than make the prosecution prove their guilt.

Several current and proposed anti-terrorism laws are already formulated in this way.

For example, laws introduced late last year impose an obligation on those who travel to declared war zones such as Syria and Iraq to prove that they are not involved in terrorism activities.

It’s uncertain whether or not the floodgates are now open for the wholesale removal of the presumption of innocence, but it certainly appears that we are headed in that direction.