Constitutional Law (3016LAW)- Defence Power is Wide Enough to Enact any Anti-terrorism - Essay Writing Assessment Answers

November 13, 2017
Author : Julia Miles

Solution Code: 1DJD

Question:

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Constitutional Law - Essay Writing Assignment Help

Task:

The defence power is wide enough to enact any anti-terrorism

measure during times of peace and this is essential to protect

human rights. Do you agree or disagree? Discuss by reference

to current law.

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Solution:

Essay Title: An essay on the breadth of the defence power with regard to fighting terrorism, while observing human rights and the extent to which it is or it is not applicable

Thesis Statement: The Defence Power is not wide enough to enact any anti-terrorism measures in times of peace which is essential to protect human right

Introduction

The defence power is not wide enough to enact legislation on anti-terrorism in times of peace which is essential to protecting human rights. It has been argued that the power has an adequately broad scope in times of war or imminent threat but not in times of peace. The power is viewed by some as being inadequate to enact legislation to guarantee future security in times of peace without substantially interfering with human rights and freedoms of the affected persons. The underlying factors are variable and dependent on numerous issues if such decisions are to be made substantially.

The defence power as established in section 51 of the Australian Constitution gives the Commonwealth Parliament the power to carry out legislation in time of peace, in time of war or even after a war. These laws can be enacted to prevent insecurity in time of peace, control damage in time of war, or even assesses and prevent future occurrences after a war. The defence power has legislations that can be interpreted and applied in any of these scenarios. However, there has been constant debate over the appropriateness of the laws and their possible disregard of human rights. The defence power is also viewed by some as being “war-minded” and therefore not suitable for application during times of peace. This perception has aspects of truth and some some fictional component.

In time of war or imminent threat, the scope of the defence power is significantly broad; but in time of peace its scope is generally viewed as being narrow. In times of peace, an adequate connection must be established between the law and the security or peace in Australia. The application of the power by the Commonwealth Parliament has been questionable all along. This essay evaluates the breadth of the defence power to demonstrate that the defendant power is not wide enough to enact any anti-terrorism measure during times of peace to protect human rights. It examines some cases that made broad use of the defence power and how they faulted; and evaluates the significance of the defence power in these cases.

Use of the defence power in time of peace

The Commonwealth Parliament has passed legislation, most of which have been causing controversies, using the power where it can be thought to have been inappropriate. For example, when the law was passed by the Commonwealth Parliament to establish a commercial dock, the reason that was raised at that  time was to provide enhanced defence. It was claimed that the docks would provide a strategic military advantage in case of a war. But looking at the investment made and risk it was to protect against it, was not justifiable at all to build the docks. It later turned out that the docks were built for commerce. The Commonwealth Parliament might have used the power inappropriately to create the legislation for a purpose that was not clearly justified. However, in a different case – the Clothing Factory Case; a similar decision was arrived at. In this case it was deemed that production of the uniforms would make the military profitable and still keep the workforce ready.

Major deficiencies in the defence power

One of the major loopholes in the defence power is the provision granting immunity to an Australian citizen from involuntary detention unless they can be proven guilty in a court of law. Regardless of who they are, a citizen cannot be held in detention before being tried in a court of law. One challenge in trying individuals in criminal cases is collecting substantial evidence to initiate a proceeding against the person. This provision as it is demonstrated a major deficiency in its implementation. It is difficult to contain a person who might be suspected of engaging in an activity that might cause harm to other citizens if enough evidence about their activity has not been collected. While it can largely be effected to protect the fundamental right of a person, it does not provide enough precision to ensure the security and protection of citizens. For example, a person with suspicious activity or behaviour cannot be involuntarily detained until they are proven guilty before a court of law. This fault sets a bad precedence and instead of protecting citizens, it could be offered protection to terrorists too.

Although it is achievable, balancing security and privacy or convenience is always a difficult thing. Ensuring citizens are protected without bothering them is not easy. A desirable situation is when an optimum point has been arrived at; when people are secured with the least interference of their daily lives. The defence power in this case is not wide enough to be applied to counterterrorism before it happens. The power has no specific measures guiding enforcement authorities in situations of peace and in such situations it is all left to the interpretation of the people in charge. As we have seen, a suspect will remain one until their guilt is proven. This does not act in deterrence of terrorism activities.

Despite these deficiencies, we must agree that the counterterrorism laws have a clear definition of what terrorism is. By the laws, terrorism is identified by two criteria: first it describes as any act that inclines on advancing a political, religious or other issue through coercion. It also identifies terrorism as any act that can cause loss of life or damage to property or any serious impairment to national infrastructure. When a person is deemed to be engaging or to have engaged in terrorist-like activities, they can be placed under control just to be sure they do not cause harm as they are regarded as potentially dangerous. For an activity to be identified as a terrorist activity, it must meet both criteria. The definition also agrees well with the principles of peace and human rights observation. The definition is sufficient in the broad term to effect some counterterrorism measures. However, what is more important in countering terrorism is being proactive – taking adequate preventive measures that discourage terrorism activities from the onset. This is the element that the defence power seems to lack.

Provision of proportionality in the defence power

As we all understand, considerations of proportionality are essential with regard to protecting human rights. The amount of force, if any that should be applied to a situation should match the threat of insecurity that is imminent. Proportionality in the current Commonwealth legislation is mostly a question of interpretation of the constitution with reference to the legislative power. This fact has made the assessment of proportionality in a case, with regard to the Australian constitution, a controversially debated topic.

Some people argue that the idea of the appropriateness of proportionality in a situation is misguided in the first place. That as long as there is a clear link between the cause and action or the threat and measures taken as in this case, the appropriateness of proportionality does not have much significance. Dixon CJ asserts that it is about the connection and not the appropriateness of proportionality; and that if enough connection can be found between the two sides it is really not up to the jury to decide whether the law fits the situation or it does not follow the principle of proportionality. But this view of proportionality contradicts fundamental human rights. Such a view promotes the use of unjustified means to get to the ends. For example the passing of the legislation by the Commonwealth Parliament to build a commercial dock was likely informed by such a view. Alleged misuse of the power by the Commonwealth Parliament to enact laws that just do not match up with their justification for existence have been cited on various instances such as this one. The power should, at the least, restrict the use of unjustifiable means to fulfil ends.

The communist party case

The High Court ruling on the Communist Party Case had one of the greatest impacts regarding legislative use of powers. In the ruling, the judges agreed that the Commonwealth Parliament had the authority to deal with parties that are considered subversive. There are certain important principles that are evidenced by the High Court's ruling on the Communist Party Case that demonstrate the deficiencies of the defence power in fighting terrorism. The validity of the applicable law is left to the interpretation of the parliament. This is one of the shortcomings of the power with regard to fighting terrorism.

Similarly, the burden of proof should fundamentally lie with the accuser. In the Communist Party Case, the Governor General had the authority to demand a person to prove they were not communist. As ridiculous as this sounds, it presented a major fault in the implementation of the laws to fight terrorism. First, it presented a major breach fundamental human rights. A person cannot be accused of a crime and asked to prove their innocence. This might viewed by some people as being necessary when the threat of terrorism is imminent. But its application when there is peace an no imminent threat, the law is suitably applicable.

In the same case, the defence power allowed the victimisation of individuals or societies that were deemed to support communist ideologies. As previously discussed, balancing convenience and security is not easy. Individuals should have the right to associate freely as provided for by the fundamental human right of freedom of association. By singling out individuals and identifying them as communists, these laws disregarded the freedom of those individuals to associate.

The defence powers' support of the current anti-terrorism laws

The defence powers grant the Commonwealth Parliament the authority to enact laws to counterterrorism activities in Australia. In its broadest interpretation, the powers allow the Commonwealth Parliament to enact a ruling which, in their wisdom, will contribute substantially to the protection of the citizens or guarantee their security. Similarly, the powers grant the jury equal authority to make a ruling that in their interpretation will contribute substantially to preventing a terrorist activity.

In the Thomas v Commonwealth highly controversial case, the defence power seemed to provide the anti-terrorism laws enough ground for Thomas' conviction. The evidence presented was questionable, but the jury presiding over the case deemed it admissible. The defence powers, in the anti-terrorism act, granted the jury the power to decide what evidence is admissible and what is not. This clearly demonstrates how execution of the defence power a majority of times lies in the opinion of the jury and not on an independent interpretation of the law. This can cause considerable impairment of civil liberties.

The control orders, as effected in Thomas' case, are designed to control a person's activity with the aim of preventing the person from engaging in a possibly dangerous activity. The defence power granted the jury the power to effect control over Thomas that restricted him from using public pay phones or leaving Australia among other things. In this case we see how the defence power provided a framework for taming a potentially dangerous person. From this example we can see that the defence power can have a significant impact on the freedom of a civilian. The civilian in this case, Mr. Thomas, had most of his rights and privileges scraped off. He was not allowed to make calls without a valid written permit, he was not allowed to be in certain places, he was restricted to a midnight-to-dawn curfew in his house among other things. This scenario can be replicated to any individual or event and have the same consequences. The downside of this power in this case scenario is its reliance on the opinion of its interpreters. Therefore, the impact the legislation has to civilian liberties is significantly high. The scenario here shows the downside of the regulation and how it may affect peoples lives. Therefore, its role must be evaluated and understood so as not to affect the basic rights of the people it was designed to serve and protect.

Conclusion

The defence power generally has well thought-through provisions that can be applied in efforts to promote, maintain or restore peace. Most of these legislations have an acceptable degree of consideration for fundamental human rights. However, some of these legislations present inherent challenges regarding the preservation of human rights. For example the power granted to interpreters to decide which law is constitutional and which is not may be providing avenues for obstruction of justice. These are the legislations that can be thought of as ineffective in balancing security and human rights. The defence power has many faults which arise from ambiguous definitions that make it ineffective for application during times of peace. Provisions such as the reverse onus outrightly disregard basic principles of human freedom. All the same, the defence power deserves some credit with regard to protecting human rights. It largely remains clear and not ambiguous thereby reducing cases of one act overruling another which usually sway justice away. The role it plays in securing and ensuring peace is significant to the country, both in short and long term.

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