Liberal democracies such as Australia are struggling to establish a balance between the demand for national security and individual rights. On one hand, individuals ought to be given vital human rights that accords to the rule of law such as privacy and on the other one, the government must protect the country from the ever-increasing threats from terrorism. Ideally, the national security is grounded on a fundamental aspect of protecting the security and liberty of Australian citizens from violent and criminal acts, mainly associated with terrorism (Michaelsen 2005, p. 321). The government is, therefore, duty-bounded to use all the powers and machinery at hand to protect the nation and individuals from attack. Thus, since the September 2001 attack in the U.S. and the Bali Bombings, the war against terror or counterterrorism has been heightened in the country by the Australian Security Intelligence Service (ASIO) (Hocking 2003, p. 355). Despite deploying strict counterterrorism measures to protect the country, there is a necessity for protection of individuals from the arbitrary excess use of power by the state. It would be imperative to indicate that there is a tendency to relegate the individual rights to a secondary consideration after the national security. In this regard, the paper seeks to support the assumption that the significance of national security tends to undermine the relevance of individual rights, which critically affects liberal democracy in Australia.
Description and Analysis of the Question
To have a clear understanding of the postulated question, it would be imperative to highlight various aspects related to political issues in the country. As a liberal democracy, Australia uses a form of a government as well as a liberal political ideology, which adheres to principles of classical liberalism. This means that the government operates by protecting individual rights as enshrined in the law and as protected by the international human rights (Flew et al. 2017). However, the question as to whether the constitution is still relevant to democracy in contemporary Australia lingers in mind of many individuals including the Australia Human Rights Commission, who have questioned its viability. Before the insurgent terrorism became a global issue, the national security operated by maintaining a balance between the state security and protection of human rights. However, the recent development in relation to global security associated with terrorism has changed everything raising major concerns pertaining to individual rights. In fact, the effect of anti-terrorism laws on crucial rights of individuals has been a major concern to other liberal states such as the United States and Australia is a no exception. From the recent political development, the parliament has crossed legal boundary especially during the Gillard reign and Howard (Walsh 2014, p. 126). The parliament has defied all odds by making laws and telling how courts should perform their functions of interpreting the law. By challenging the judicial functionalities, the government through the parliament enacted laws that undermine fundamental rights of citizens in the face of global terrorism.
In constitutional perspective, many people argue that the constitution is not relevant to democracy in contemporary Australia since it does not have bill of rights. To have a clear view, it would vital to explain the U.S. bill of rights, a state which shares a similar aspect of liberal democracy as Australia. In the U.S., the Bill of Rights is fundamental in safeguarding individual liberty. Unlike Australia, the Bill of Rights is well-articulated in the U.S. Constitution. Thus, through Bill of Rights, the relationship between an individual and state as well as protection of individuals from the arbitrary government powers are postulated (Campbell 2007, p.18). Ideally, the core aspect of any constitution is to protect individual liberty as well as constrain government. The constitution of Australia does not mention individual rights, and most critical, it does not contain a bill of rights, which can protect the individual from oppressive powers of the government. With no reasonable doubt, this has played a crucial role in undermining individual rights by enacting laws that incline towards enhancing national security. Thus, the importance of national security has been given a key boost, which has deflated individuals from enjoying their rights.
Reasons Why Importance of National Security Mean that Individual Rights are no longer as relevant as they once were
Over the last few years, the Australian civil rights have come under serious attack by various laws enacted to sustain the national security. The recently enacted data retention law is one of the national security measures that has irrefutably undermined individual rights. In April 2017, the data retention law was established (Gal 2017). The law necessitates telecommunication organizations operating in Australia to store data related to customers for not less than two years. To exemplify the act, this means that all data from phone calls, emails, and texts are tracked by the Australian Security Intelligence Service (ASIO) and other law enforcement agencies in the country. It was ironical that the law was enacted a few weeks after the government conducted a privacy awareness week. Irrefutably, the government has taken the measure being utilized by other Western democracies to heighten counter-terrorism measures. For instance, the United Kingdom enacted similar law known as the Investigative Powers Act, which erodes civil rights (MacAskill 2016). Therefore, the data retention law acts as one of the comprehensive as well as invasive data collection system. The law dents the liberal democratic principles on which Australia is founded. The act is now capable of gravely harming individual rights to privacy and anonymity. Further, the act destroys the most fundamental democratic principle of protecting citizens from having their personal information collected (Gal 2017). Thus, the national security has become more important than the individual rights, which as great concern to liberal democracy such as Australia.
The Australian Citizenship (Allegiance) Amendment Bill of 2015 is another law that has impeded individual rights in the country (Kayis 2016, p. 9). The legislation stipulated that Australian dual-citizens can lose citizenship for any activities committed in another country. The flawed legislature stated that one could not undergo a trial or be convicted of any offense upon losing citizenship. The legislature was as a result of a review of the counter-terrorism machinery for safer Australia. However, the parliament passed the legislatures for political gains (Solomon 1999, p. 7). The review highlighted that threat to terrorism was rising due to increasing number of extremist sympathizers as well as rising number of foreign terrorist fighters. Thus, the government amended the Citizenship Act 2007 to broaden the powers associated with cessation of citizens of Australia who are allegedly involved in terrorism (Kayis 2016, p. 1). With no reasonable doubt, the legislature is flawed as it contained inadequate safeguards and oversight mechanisms to prevent cessation of Australian citizenship to individuals who are innocently accused of terror offenses in the overseas. In fact, the Amnesty international acknowledged the fact that the Bill raised significant human right issues. Some of the key human right issues include statelessness, citizenship, as well as limitation of the executive power. The Bill defied the fact that the respect and protection of human rights is a fundamental basis of the fight against terrorism. In this regard, it is clear that the matters regarding national security were given priority than the protection of human rights.
The Australian Security Intelligence Service (ASIO) Bill 2002 also played a crucial role in ravaging the human rights in support of national security (Michaelsen 2005, p. 323). The origin version of the bill enabled Australia by the Australian Security Intelligence Service to detain an individual in police custody without any charges. The act would have disregarded the most fundamental individual right of freedom of expression as well as freedom of fair trial. In a liberal democracy such as Australia, such laws should not be condoned or even be attempted to be signed into law. Irrefutably, matters related to national security are prioritized before individual’s fundamental rights. The ASIO Bill 2002 would also have enabled security agencies in Australia to strip-search detainees as well as denying them access to legal advice (Uhr 2017, p. 325). However, the bill was savaged by human rights watch and amendments were done. Nevertheless, the move had given a clear indication of the importance of matters associated with national were treated by lawmakers to be more imperative than the individual rights. Such moves portray major concerns to Australia, which for a long term has been one of the most vibrant liberal democracy across the globe (Lynch and Williams 2006). The human rights stipulate that every person should be treated with humanity and with ultimate respect to upholding human dignity, and not to be exposed to inhumane, cruel, as well as demeaning treatment, which questions democratic aspect of the country.
Further, Anti-Terrorism Act 2005 gave the federal courts to make control orders, which further affected the liberal democracy in Australia in the midst increasing global terrorism (Lynch, McGarrity and Williams 2015. The mainly enabled the government to control and prevent acts of terrorism. To exemplify the Anti-Terrorism Act 2005, it would significant to define the control orders. The control order, in this case, entails request of the Australian Federal police issued by courts to facilitate restrictions, obligations, as well as prohibitions to be imposed to any individual, as a mean of protecting the nation from the acts of terrorism. Together with the ASIO Bill 2002, the Anti-Terrorism Act 2005 places tight limitations on the revelation of evidence pertaining to various cases, which individuals are detained by law enforcement agencies (Uhr 2017, p. 325). In this perspective, the act makes it extremely challenging for human right activists as well as independent legal representatives to exercise the right habeas corpus, which indicates whether a detention or imprisonment is law-abiding (Hocking 2003, p. 365). Any court issuing a control order should be satisfied that the order is the least restrictive mean of achieving the objective of protecting individuals and nation from any act of terrorism. Under this proposition, the act would protect the security of the nation with undermining rights of individuals. Thus, it is significant to indicate that the law to protect the country from terrorism has demeaned the individual rights despite the country being a liberal democracy.
The counter-terrorism laws have also impeded the freedom of the media. Various enactments of counter-terrorism since 9/11 have seen the state, through parliament enact a law enabling them to expand the ability to control information (McNamara 2009, p. 95). Indisputably, the liberal democracy in Australia has been undermined as the media has been deprived their freedom in face of the national security needs. As a liberal democracy, media is supposed to play a crucial role of watchdog. That is the fourth estate, which holds all arms of the administration into account. However, the needs of the national security have in most cases demanded information not to be made available to the public. Generally, two main legal strategies have enabled the national security to be in the realm, thus limiting media freedom. First, counter-terrorism laws are designed to ensure media does not obtain information. Secondly, the laws have aimed at preventing publications aiming at ensuring information obtained by the government cannot get to the hand of the media to avoid any instance of dissemination. In all, the counter-terrorism laws have undermined media freedom as well as acted against the Freedom of Information Act 1982, which gives to of access to information (Hazell and Worthy 2010, p.353). The move to deny media its freedom has raised serious issues as to whether the countries believe in liberalism.
In conclusion, it is clear that the counter-terrorism laws represent one of the greatest threats to the liberal democracy in Australia since Second World War. In particular, serious inroads have been made into the liberal democratic principles that have been guiding the country for many years. Some of the crucial individual’s rights that have been undermined include detention without trial and deprived media freedom. The event of 9/11 and the Bali Bombings have been utilized to strengthen national security, thus sacrificing individual rights. The government has achieved the unprecedented move by expanding the powers of security agencies mainly the Australian Security Intelligence Service (ASIO). The context of a bicameral parliament in making laws that challenge the importance of human rights has become an issue hindering prosperity of liberal democracy in Australia. Thus, the importance of national security means that Individual Rights are no longer considered to be vital.
Butler, J., 2016. Australia's Anti-Terror Laws Savaged By Human Rights Watch. [Online]
Available at: https://www.huffingtonpost.com.au/2016/10/20/australias-anti-terror-laws-savaged-by-human-rights-watch_a_21587751/
[Accessed 7 April 2018].
Campbell, T. 2007. Protecting Rights Without a Bill of Rights: Institutional Performance and Reform in Australia. Farnham, Ashgate Pub.
Flew, T., Harrington, S., Swift, A. and McNair, B., 2017. Politics, media and democracy in Australia: public and producer perceptions of the political public sphere. Routledge.
Gal, U., 2017. The new data retention law seriously invades our privacy – and it’s time we took action. [Online]
Available at: https://theconversation.com/the-new-data-retention-law-seriously-invades-our-privacy-and-its-time-we-took-action-78991
[Accessed 7 April 2018].
Goldsworthy, J., 2017. Protecting Rights Without a Bill of Rights: Institutional Performance and Reform in Australia. Routledge.
Hazell, R. and Worthy, B., 2010. Assessing the performance of freedom of information. Government Information Quarterly, 27(4), pp.352-359.
Hocking, J., 2003. Counter‐Terrorism and the Criminalisation of Politics: Australia's New Security Powers of Detention, Proscription and Control. Australian Journal of Politics " History, 49(3), pp.355-371.
Kayis, D., 2016. Citizenship and Terrorism: A Critical Analysis of the 2015 Australian Citizenship Act Amendments.
Lynch, A., McGarrity, N. and Williams, G., 2015. Inside Australia's anti-terrorism laws and trials. NewSouth.
Lynch, A. and Williams, G., 2006. What Price Security?: Taking Stock of Australia's Anti-terror Laws. Unsw Press.
MacAskill, E., 2016. 'Extreme surveillance' becomes UK law with barely a whimper. [Online]
Available at: https://www.theguardian.com/world/2016/nov/19/extreme-surveillance-becomes-uk-law-with-barely-a-whimper
[Accessed 7 April 2018].
McNamara, L., 2009. Counter-terrorism laws and the media: National security and the control of information. Security Challenges, 5(3), pp.95-115.
Michaelsen, C., 2005. Antiterrorism Legislation in Australia: A Proportionate Response to the Terrorist Threat?. Studies in Conflict " Terrorism, 28(4), pp.321-339.
Solomon, D., 1999. The Political High Court: How the High Court Shapes Politics. Allen " Unwin.
Uhr, J., 2017. The Performance of Australian Legislatures in Protecting Rights. In Protecting Rights Without a Bill of Rights(pp. 51-70). Routledge.
Walsh, M., 2014. The Gillard Government, the Coalition and Asylum Seekers. The Gillard Governments: Australian Commonwealth Administration 2010–2013, pp.125-140