Its time to give the Courts power to determine whether our anti-terrorism laws violate our fundamental rights of liberty and freedom from arbitrary detention.

Australian Security agencies have said that to combat and prevent terrorist acts they need to have power to hold terrorism suspects for interrogation without charge for two weeks. They also want a central data base of identifying material from driving licenses and passports to identify people of interest.

COAG has agreed to these extended detention powers, which are said to apply even to children as young as 10. It has agreed to the establishment of a facial identity data base and also to the introduction of new offences relating to terrorism hoaxes and instruction mal terrorist material.

When it was suggested that these laws would further erode our rights and liberties, Victorian Premier Daniel Andrews is reported to have said that civil liberties are a “luxury” in the face of the “very real terror threat” Australia is facing. “We are going to have to curtail the rights and freedoms of a small number of people in order to keep the vast majority of Australians safe,” he said. “That is challenging. But it is necessary.” [The Age 5 October]

But while we should all be concerned about the threat of terrorism, we should face up to it while upholding our fundamental values, and we should remember that when civil liberties are undermined, the whole of society is the loser. As Dr Mohamed Haneefs case showed in 2007, the application of anti-terrorism laws can lead to gross injustice.

Who will stand up to defend our rights and freedoms? The opposition cannot necessarily be relied on for this, as it will not wish to appear less concerned about terrorism than the government.

This is the death of liberty by a thousand cuts, as governments and opposition alike yield to the demands of security forces,.

How have we come to this? After all, Australia helped to draft the high ideals of the Universal Declaration of Human rights in December 1948, and later signed on to the main UN Human Rights instruments. The Covenant on Civil and Political Rights protects the right to liberty and security of person and the right to be free from arbitrary arrest and detention. Even lawful detention can be challenged under these principles where the grounds for detention are not proportionate or justifiable.

Remedies for violation of Covenant rights should be available to everyone. But in Australia, such redress is limited. Individuals may take complaints to the UN treaty bodies where they consider their rights have been violated. The treaty bodies have frequently found Australia to be in violation of rights, especially in regard to the arbitrary detention of asylum seekers. Unfortunately, there is a growing list of cases in which the Australian government has simply said that it does not agree with the Human Rights Committee, preferring its own interpretation of the Covenant to that of the independent body set up to supervise its implementation.

One might ask why the High Court of Australia does not have a key role in determining whether anti-terrorism laws infringe rights and freedoms in particular cases. There may be a few cases in which the High Court could find that the executive has exceeded its power and impinged on the judicial function. But in most cases the High Court does not have power determine whether the laws and executive actions are so disproportionate to the needs of security that they infringe rights and freedoms.

Several efforts to introduce a Constitutional Bill of Rights or to entrench the legal protection of rights have failed. The principal argument put forward by the opponents of such reform is that rights and freedoms are better protected by political processes in the Parliament than by unelected judges. As if politicians would act calmly, prudently, weighing up impartially the circumstances, and come to a conclusion that is soundly based on principles. This argument sounds increasingly hollow when politicians shrink from opposing the extension of security powers, and when Parliament legislates for even greater powers of arrest and detention in anti-terrorism, migration and other laws. Those who should defend our rights then pass the laws that lead to violations.

Who would not prefer to hear these complex legal issues argued at length in the calm atmosphere of an independent and impartial Court, than subjected to the heat of political debate? Judges are neither infallible nor perfect. But they are independent, and remain bound by the rule of law. Just ask why it is that politicians like Minister Peter Dutton strive to exclude the jurisdiction of the courts in relation to asylum seekers wherever possible? Simply because the courts are not swayed by political considerations or the latest scare campaign.

The court has the final word on the law, and politicians who do not like this can seek to change the law, or if the constitution does not permit such change, to ask the people to change the constitution.

There is also concern about the facial recognition and matching system and its implications for personal privacy. Under the COAG agreement the data base will be extended to include all state and territory driving licenses. It is notable that only the ACT, which has human rights legislation in place, expressed concern and reservations about the use of the system of mass surveillance for purposes other than national security.

When rights are eroded little by little, and when politicians fall in behind the banner of counter-terrorism one can only regret that there is no constitutional or entrenched legislation which would empower the Court to say enough this violation of rights goes too far, and has not been shown to be necessary and proportionate to need.

Elizabeth Evatt AC, former member of the UN Human Rights Committee (1993-2000), Commissioner of the International Commission of Jurists.