Claire Mahon – Australia & Switzerland

Linked with op-icescr – again in Geneva of January 31, 2006.

Added February 28, 2008: her photo and this link of Human Rights Tool.org.

Claire Mahon – Consultant on Economic, Social and Cultural Rights. She joined the Internat. Commission of Jurists (ICJ) in November 2004 as a Legal Consultant responsible for ICJ’s work on economic, social and cultural rights, in particular the campaign for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR).

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Claire Mahon – Australia & Switzerland

An Australian and New Zealand national, she obtained her LLB (with honours) and BA in International Relations from the Australian National University in Canberra, and later went on to study International Law and International Relations at the Graduate Institute of International Studies in Geneva.

Prior to joining the ICJ Claire worked for Amnesty International at their UN Geneva Office and practiced as a lawyer in Melbourne, Victoria. Her work for Amnesty International Australia, the Law Institute of Victoria and the Federation of Community Legal Centres led to her being awarded the Law Institute of Victoria’s Paul Baker Memorial Prize for outstanding contribution to human rights law in 2003.

Claire Mahon and Karyn Palmer publish in ‘THE AGE‘ on June 2003: How the ASIO bill ravages your civil rights. (click here what is ASIO).

What would you do if government agents burst into your home at two in the morning and interrogated you for seven days? Or if Federal Police removed you from your workplace in the middle of the day and took you to a place where ASIO officers questioned you against your will for a week?

You didn’t do anything wrong, but ASIO argues you could have information that would help them. If you refuse to co-operate or surrender information, you could be jailed for up to five years.

You ask to see a lawyer, but are told that unless you can name the lawyer they can’t tell you whether they’d approve. You tell the agents you don’t know the names of any lawyers off the top of your head because you have not been in trouble with the law before.

They begin questioning you, and when the lawyer finally does get there, hours later, she isn’t able to help much. As soon as she tries to advise you or ask why you are being detained, she is asked to leave the room.

You are not allowed to contact family or friends during the seven days you are kept in detention. The inquisitors say that although they are not permitted to hurt you, even if they did you wouldn’t be able to tell anyone who they were because their identity is top secret.

Is this allowed? Under the sweeping changes to ASIO’s powers in the Federal Government’s anti-terrorism legislation, the answer is yes. Under the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill [No. 2] 2002 (“ the ASIO bill”), this scenario is entirely possible.

Since the shocking terrorist attacks in New York and Bali, countries around the world have taken steps to beef up their counter-terrorism laws. Australia is no exception. The ASIO bill is one result, and its passage through the Senate this week is guaranteed, because the Opposition has agreed to key “concessions” from the Government.

So what will ASIO now have the power to do? With the Attorney-General’s approval, it will be able to obtain a warrant from a federal magistrate or a judge, as long as it has reasonable grounds for believing that detaining and questioning someone will substantially assist in the collection of intelligence regarding a terrorism offence.

That person will then be able to be questioned in the presence of a prescribed authority (who can be a current or former judge, or president or deputy president of the Administrative Appeals Tribunal). The detained person will be able to be questioned for up to 24 hours (in a maximum of three eight-hour blocks), and this questioning will be able to be spread over seven days.

For the legal profession the ASIO bill has enormous implications. First, it fundamentally alters some of the core elements of our criminal justice system by removing many key rights, such as the right to silence and the presumption of innocence. And while this legislation is not directed at terrorist suspects, it hinges on the definition of terrorism recently inserted into the Criminal Code. This broad definition of “terrorism offence” is a major concern.

Second, for lawyers this legislation is offensive because it significantly changes the role we can play in assisting our clients.

Under the bill there is access to a lawyer, but the choice of lawyer and the role of the lawyer during the questioning process is severely restricted.

When representing a client detained for questioning under the bill, it is first of all not assured that a lawyer will even get in the door. ASIO has the right to veto any lawyer. And even before that stage, the detained person must ask for the lawyer by name. The lawyer is prohibited from being given any information relating to “national security”.

During the questioning itself, the lawyer cannot interject or object to questioning, nor can he or she actively advise the client during the questioning process, but rather must wait until after the eight-hour questioning block has finished.

If the lawyer “disrupts proceedings” by doing anything other than requesting clarification of a question, he or she can be ejected. Further, if a lawyer communicates any information about the client’s detention or questioning to any entity other than the Federal Court, the lawyer has committed an offence punishable by up to five years’ imprisonment.

Both the Government and the Opposition have assured us that the bill contains various safeguards to protect rights. However, many of these safeguards will be hard to enforce in practice.

For example, while it is an offence for an ASIO officer to treat a detained person in a cruel, inhuman or degrading way, it will be difficult to enforce this when it is illegal to identify the officer.

The bill has come under scathing criticism from community groups and lawyers for the way in which it undermines our legal system and offends basic human rights principles.

The Law Institute of Victoria in particular has been concerned with the bill’s impact on children. We have maintained that children should not be covered by this legislation. Now only those from 16 years of age will be subjected to the provisions of the legislation — which still enables ASIO officers to strip search young people.

High Court judge Michael Kirby said in a recent speech that the Federal Government’s planned anti-terror laws would never undermine Australian civil rights. He noted that section 75 of the constitution provides Australians with the right of appeal to the High Court — a protection no government can legislate against.

It will remain to be seen whether the constitution can uphold the fundamental tenets of our criminal justice system ravaged by the ASIO bill.

Alert and Alarmed: Defending against the Anti-Terrorism Laws: (see on Southern Cross Uni). The recent Commonwealth Government advertisements call on us to be alert but not alarmed about the threat of terrorism in Australia. Meanwhile, human rights defenders have been both alert to and alarmed by the way in which the post-September 11 legislative response to terrorism threatens fundamental human rights and civil liberties. The call for submissions to the first Senate Inquiry into the proposed Anti-Terrorism Laws prompted the largest community response ever seen, and the activist forces that were mobilised at that time, and continue to be active in campaigning against the laws, were diverse, ranging from trade unions and ethnic groups to lawyers and journalists. Regardless of the practical obstacles encountered by activists, this campaign to ensure that human rights are not another element of collateral damage suffered in the war against terror has had some impact.

This paper will trace the path of the anti-terrorism legislation, and overview the ways in which this legislation is an affront to human rights. The purpose of the paper is then to analyse the role of human rights activists and other groups and their respective responses to the security legislation. It will show how the focused input of groups directly impacted on the results of the numerous legislative reviews, and how overall the role of human rights activists was pivotal to the process of reviewing and redrafting the legislation. Through this vigilance, the proposed laws have been amended to reflect some small concessions towards protecting human rights. Furthermore, the role of human rights defenders in the future will be important as the legislation is applied, interpreted and further reviewed. Claire Mahon.

CLAIRE MAHON writes (in ‘the world today‘): The Government has, for a long time now, shown with its policy of detaining children asylum seekers that it does not intend to protect the rights of young people and does not take seriously its obligations under the convention.

It is time for the Opposition to remain firm in its commitment to honour our international obligations, both under international law and to the non-voting citizens of our own country.

The only kind of detention that a 16 or 17-year-old child should be concerned about is school detention.

She works also for the op-icescr.

links:

the Optional Protocol of Economic, Social and Cultural Rights (op-icescr);

A class open to all students: International Human Rights Through the Concepts 2005-2006;

INO People;

about Community Options;

Civil Rights Network;

International Human Rights Lexicon;

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