Rethinking preventative detention from an international human rights perspective: a comparative study of Australia, Malaysia and Singapore

Abstract

In order to prevent terrorist attacks, in 2005 Australia introduced a new division into the Criminal Code 1995 (Cth). This allows preventative detention of terrorism suspects who have not been charged with any offence and of even non-suspects, for up to 48 hours under federal law, with the possibility of extending the detention up to 14 days under complementary State and Territory legislation. In contrast, since September 11, both Malaysia and Singapore have adopted only minor changes to their existing anti-terrorism laws. The two states have long dealt with terrorism suspects by relying primarily on the detention without charge measures provided for under the Internal Security Act 1960 (Malaysia) and the Internal Security Act 1965 (Singapore). The two Acts give the executive sweeping powers, including the power to indefinitely detain persons without charge for the purpose of national security.

This thesis examines and compares the preventative detention measures adopted by these three states from an international human rights perspective. Security-based preventative detention is a permissible deprivation of liberty under the International Covenant on Civil and Political Rights as long as it is lawful and proportionate, but any detention without charge must conform to the procedural constraints. Despite the fact that Australia's detention regime includes some safeguards, its provisions are highly problematic. In Malaysia and Singapore, both schemes have been consistently used to suppress political dissidents rather than to protect the state from threats of terrorist acts. Although Australia's new detention regime has a different maximum period of detention and grounds of detention, it has in common with its Malaysian and Singaporean counterparts a lack of sufficient and effective procedural safeguards. These include the absence of a detainee's rights to a substantive merits review of the detention grounds, to have regular contact with the outside world, and to have confidential lawyer-client communications. The thesis concludes that the normalisation of extraordinary emergency rules in Malaysia and Singapore is already against international human rights law, and there is a real danger that Australia’s preventative detention regime might damage the established rule of law and the criminal justice system.