Preliminary Legal Studies: Civil Law and Erosion of Civil Liberties

This report delves into the erosion of civil liberties in Australia, examining the impact of anti-terrorism legislation and the limitations on freedom of expression. The analysis focuses on the Mohammad Haneef case, highlighting the legal and social implications of government actions. The report discusses concerns about the balance between national security and individual rights, including censorship, detention, and surveillance. It also assesses the role of the legal system in addressing these issues, emphasizing the need for reviews and amendments to protect civil liberties. The report references relevant legislation, such as the Crimes Act 1914, the Criminal Code 1901, and the Espionage and Foreign Interference Act 2018, and provides a critical evaluation of the legal framework.

Running head: CIVIL LAW
CIVIL LAW
Name of Student
Name of University
Author Note

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Erosion of Civil Liberties in Australia
In the past years there had been an extraordinary burst of new anti-terrorism legislations
being enacted (Hunter, 2016). As per a study conducted by Canadian Professor Kent Roach it
was seen that Australia had exceeded UK, USA and Canada in the enactment of the new anti-
terrorism laws. The hyper-legislation policy of Australia can be seen to be straining the ability to
be keeping up by the oppositions of the parliament and the civil society. There have been severe
concerns raised about the erosion of the civil liberties and the threats to the freedom of
expression that can be seen to be present because of the actions of the government of Australia.
The government in the past few years is seen to be less concerned about the civil liberties and
freedom of expressions. An example for such can be seen in the case of Mohammed Haneef.
Mohammed Haneef, an Indian national and a doctor, was arrested in 2007 at the Brisbane
airport in connection to a failed bomb plot in London. He was detained for 12 days without any
charge under the provisions of the Crimes Act 1914 (Cth). He was later charged under the
Criminal Code 1901 (Cth) in violation of provisions of anti-terrorism for allegedly supporting
terrorists in the UK (Ewart, Pearson & Lessing, 2013). The arguments that were presented by
prosecution were done in secret and even the defence was not allowed to be present for hearing
the evidence that was presented in front of the magistrate. The reason provided for the secrecy
was that the evidence was sensitive and the disclosure of such evidence could be jeopardizing the
investigations that have already been started in Australia and overseas. As the charge was
unsustainable it was quickly dropped, however his immigration visa had been cancelled
unlawfully on character grounds, which meant that he could be detained under the Migration Act
1958 (Cth). Because of this case a significant amount of deficiencies were seen to be found in the

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legislative provisions that were introduced as a response towards the threat of terrorism
(Lawcouncil, 2016).
The legislations are seen to be imposing restrictions on speech and expression of
common people by way of censorships, detention, banning organizations, control orders and
surveillance towards the people who are not suspects. An example of restriction on freedom of
speech and expression by the Australian Government is the recent raid of the Australian Federal
Police on Journalist Annika Smethurst and the Australian Broadcasting Corporation. In both the
cases the issues that were being reported were in the interest of the public. The arguments made
by the Australian Federal Police and Australian Government that the reporting has been
jeopardizing the national security are baseless (The Guardian, 2019). This can be said to be
against freedom of speech and media freedom. The whistleblowers who speak out are being
hunted down and threatened with long jail terms instead of being protected and rewarded. The
Freedom of Information Laws are seen to be exempting the Australian intelligence and security
agencies. A very powerful signal is sent which proves that secrecy is the norm. Every state keeps
secrets but the blanket exemptions given to the security agencies of the FOI can be seen to be
making Australia an outlier in the world of mature and liberal democracy.
In response to the unprecedented threats in 2018 the Australian Government passed the
Espionage and Foreign Interference Act for the restriction of influence of foreign political
powers in Australia. It had been introduced after three of the special Rapporteurs of the United
Nations, on freedom of expression, human rights while countering terrorism, and human rights
defenders, were seen to be warning the government of Australia that the changes that had been
proposed for the national security laws would be imposing ‘Draconian’ criminal penalties on the
freedom of expression and would have a high chance of being inconsistent with the international

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treaty obligations of Australia. Amendments made to the Act were seen to be removing the
restrictions that had originally been intended for application towards charities, unions and arts
bodies. However there had been severe criticisms from various legal groups about the capacity of
the new law for criminalizing protests and the communication of anti-government opinions as
espionage.
In this context it can be said that Australia is in need of review of the legislations in
relation to anti-terrorism. Reviews and amendments are needed in the criminal codes that can be
seen to be making it a crime for public servants to be whistle blowing on maladministration and
corruption. An ongoing review is needed for the national security and anti-terror laws. Once per
year assessment is needed for the threat level and the question is needed to be asked: “Do we
really need this level of power for the intelligence and security agencies?” If the answer is no,
their powers are needed to be rolled back. The FOI law needs to be amended and a bill or charter
of rights for the explicit protection of civil liberties is also needed.

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Reference
Crimes Act 1914 (Cth)
Criminal Code 1901 (Cth)
Espionage and Foreign Interference Act 2018
Ewart, J., Pearson, M., & Lessing, J. (2013). Anti-terror laws and the news media in Australia
since 2001: How free expression and national security compete in a liberal
democracy. Journal of Media Law, 5(1), 104-132.
Hunter, L. Y. (2016). Terrorism, Civil Liberties, and Political Rights: A Cross-National
Analysis. Studies in Conflict & Terrorism, 39(2), 165-193.
Lawcouncil. (2016). Mohamed Haneef Case. Retrieved 27 July 2019, from
https://www.lawcouncil.asn.au/policy-agenda/criminal-law-and-national-security/anti-
terror-laws/mohamed-haneef-case
Migration Act 1958 (Cth)
The Guardian. (2019). Federal police raid home of News Corp journalist Annika Smethurst.
Retrieved 27 July 2019, from
https://www.theguardian.com/australia-news/2019/jun/04/federal-police-raid-home-of-
news-corp-journalist-annika-smethurst