Deconstructing the Logic of Responding to One Threat with Another: The Perils of Countering Terrorism by Eroding Human Rights

U of Melbourne Legal Studies Research Paper No. 235

HUMAN RIGHTS 2006: THE YEAR IN REVIEW, Marius Smith, ed., pp. 115-154, Monash University, 2007

39 Pages Posted: 14 Jun 2007

See all articles by Joo-Cheong Tham

Joo-Cheong Tham

University of Melbourne

Dianne Otto

University of Melbourne - Melbourne Law School

Abstract

In this paper, we question the logic and validity of the government's defence of the new 'terrorism' offence laws. We begin by unpacking the key elements of government's justification for these laws and draw out how they have helped to make the adoption of these laws more palatable to the Australian public in a climate of fear. Grounded in a 'War on Terror', the government's approach poses serious dangers to the protection of human rights, firstly, through its preference for coercive measures, that is, measures that seek to compel behaviour through the threat of punishment and penalties. Its approach also puts the protection of human rights at risk through its presumption that such measures do protect lives and the prospect that counter-terrorism laws will be discriminatorily applied especially to Muslim communities.

We then examine a selection of the new laws from each of the three planks. With the first plank of Australian anti-terrorism laws, we focus on the censorship and sedition laws. We also analyse the second plank of such laws, those allowing the banning of 'terrorist' organisations and, thirdly, we examine the case of Jack Thomas who was charged with terrorism offences and is currently subject to Australia's first control order. Each of these areas illustrates one or more of the dangers of the government's approach. Finally, we demonstrate how the approach taken by the United Nations (UN) Security Council and international human rights bodies suggests an alternative way to tackle terrorism with an emphasis on non-coercive measures and precise criminal offences, in a broader context of promoting tolerance and respect for diversity, and addressing pressing issues of social injustice and inequality. In contrast to the Australian government's approach, these bodies also stress the importance of addressing and ameliorating any discriminatory effects associated with counter-terrorism laws.

Keywords: human rights, counter-terrorism, laws, Australia

JEL Classification: K33, K14, K10

Suggested Citation

Tham, Joo-Cheong and Otto, Dianne L., Deconstructing the Logic of Responding to One Threat with Another: The Perils of Countering Terrorism by Eroding Human Rights. U of Melbourne Legal Studies Research Paper No. 235; HUMAN RIGHTS 2006: THE YEAR IN REVIEW, Marius Smith, ed., pp. 115-154, Monash University, 2007. Available at SSRN: https://ssrn.com/abstract=993653

Joo-Cheong Tham (Contact Author)

University of Melbourne ( email )

185 Pelham Street
Carlton, Victoria 3053
Australia

Dianne L. Otto

University of Melbourne - Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia
61 3 8344-4063 (Phone)
61 3 9347 2392 (Fax)

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