I remember it still. I was seated in a 'Foundations of Law' class - a first year law course at the University of Sydney and discussion turned toward the War on Terror and its detrimental impact on human rights. At the time, I had just arrived in Sydney from Canada (where I was born and raised) and was astonished to discover that Australia did not have a Bill of Rights comparable to the Canadian Charter of Rights and Freedoms. I was not alone in my surprise. My colleagues, Canadians and non-Canadians alike, began debating the merits of introducing such an Act across Australia. In what follows, I attempt to articulate the Canadian experience with the Charter and outline its merits and drawbacks respectively, in light of the War on Terror.

The Canadian Charter of Rights and Freedoms ('The Charter' for short), is a bill of rights entrenched in the Canadian constitution. It expressly guarantees a number of rights and freedoms for citizens including, but not limited to:

  • Freedom of religion
  • Freedom of expression
  • Freedom of association
  • Freedom from arbitrary detainment or imprisonment.

In a post 9/11 world, it has become increasingly important to balance national security with fundamental freedoms, making sure that the latter is not sacrificed in favor of the former.

A liberal democracy is built on the twin pillars of accountability and a system of checks and balances, whereby the three arms of government (the legislature, the executive and the judiciary) act as a check on each other so as to prevent any abuse of power by one particular branch. Both Canada and Australia have enacted Anti-terrorism legislation which grants government entities extraordinary powers that are meant to guarantee safety for their citizens. However, in Canada, such powers are counterbalanced by the concern for safeguarding human rights via the Charter. For example, in February of this year, the Supreme Court of Canada struck down a law that permitted the government to subject terrorism suspects to indefinite detention using secret evidence and without charge while their deportations are being reviewed. Such rulings represent a victory for open justice and transparency; two essential components of a liberal democracy.

Acts such as The Charter are not perfect. In the past, many have voiced concerns that Courts (who are primarily responsible for interpreting The Charter), allow judges to, by virtue of their interpretations formulate policy without being held accountable to the electorate. In addition, judges are not under an obligation to make their decisions comprehensible to the public at large. Such barriers undermine democratic principles such as open justice and separation of powers (by allowing judges to tread in the domain of Parliament by making policy-decisions).

Subsequent to some vociferous debate, my fellow colleagues and I left our Foundations' class with markedly similar opinions; that it is preferable to balance human rights with national security, as opposed to further implementing Anti-Terrorism legislation without having fundamental freedoms guaranteed by the Constitution. Needless to say, the ultimate decision lies with Australians.

Alim Khamis