Locking up someone for 14 days without charge in a terrorism investigation might enable a desperate government to win some points with voters but it is a charter for police abuse and any “evidence” obtained is likely to be of little value and rejected by a court as unfairly obtained.

Prime Minister Malcolm Turnbull’s proposal, similar to one mooted by Victoria’s government recently, is part of a package of new anti-terror laws he is proposing. If these laws see the light of day, it will bring to around 75 the number of anti-terror laws considered by, and in the main passed, by the federal Parliament since 9/11.

But detention without charge is anathema to a society that respects the rule of law. The great English jurist Tom Bingham noted that strict limits on the time a person could be detained without charge is “one of the most fundamental safeguards of personal liberty”. We used to associate the whisking of people off the street with authoritarian regimes, which use the mantle of “security of the state” to justify holding people in detention for long periods without charging them with any offence. 

[Turnbull agilely navigates the ‘do something’ terrorism mentality]

Leaving aside the fundamental undermining of democratic values and the rule of law that Turnbull’s proposal represents, there are two other major dangers with the idea that police and security agencies, like ASIO, should have the power to detain someone for two weeks without having to charge them.

The first is that such a power will lead inevitably to abuses of power by police and security agencies. When a person is imprisoned under this proposed power, they are at the whim of those detaining them. They are isolated from family and friends, have limited access to legal advice, and are kept in conditions that ensure sleep deprivation and isolation are prominent features of their daily schedule. Police and security agencies can hold out the “promise” that they will be released before the 14 days expire — if they “co-operate” with investigators.

As a consequence of the inherently problematic nature of what is effectively 14 days’ imprisonment, the second danger of unreliability of any evidence gained from the detention arises. You do not have to be seasoned criminal law expert to know that the longer you hold a person in detention in circumstances where they have not been charged or are not serving a sentence, the more likely it is they will tell investigators what they want to hear in order to remove themselves from the detention.

[There is no Australian terrorism ‘crisis’ and involving the military is dangerous]

There is also the fact that the 14-day-detention-without-charge proposal breaches three articles of the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a signatory. They are: the prohibition on arbitrary detention (Article 9(1)); the right of an individual to be informed, at the time of arrest, of the reasons for his or her arrest and be promptly informed of any charges against him or her (Article 9(2)); and the right of any person arrested or detained to be brought promptly before a judge or other officer authorised to exercise judicial power to rule on the lawfulness of that detention (Article 9(3)).

So if prosecutors seek to rely on “evidence” obtained from a person who has been detained without charge for 14 days, courts may rule that “evidence” inadmissible on the basis that it has been obtained under severe duress and because it was obtained in breach of article 9 of the ICCPR. 

Back in 2004, Leonard Hoffmann, a senior UK judge, warned that the “real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.” He might have been talking about Turnbull’s proposal for detention without charge. Once again, Australian politicians are looking to hand another victory to terrorists.