Terrorising innocence: Australia’s counter-terrorism laws trump freedom of liberty

Abstract

ABSTRACT Extant threats—from terrorists to health pandemics—test our resolve in the arena of liberty and human rights. Our fidelity to the presumption of innocence often wavers in these circumstances, whether the threat is real or illusory. This article argues that Australia’s counter-terrorism laws worryingly erode the presumption of innocence by shifting the burden of proof to the presumed innocent person to prove exceptional circumstances to justify bail. These far-reaching new laws create a separate bail framework that is inadequately justified, disproportionate to its legitimate objectives, and contrary to the fundamental principles of our liberal democracy. This paper critically analyses the legislative history of bail provisions found in counter-terrorism laws as well as the spawning jurisprudence denying bail where the presumed innocent person is labelled a ‘terrorist’. These laws problematise Australia’s compliance with fair trial rights under new domestic legislation such as the Human Rights Act 2019 (Qld) as well as with its obligations under the International Covenant on Civil and Political Rights. This critique raises questions about the legitimacy of laws that erode fundamental human rights in the name of national security and undermine the very democratic values they purport to protect.