New security laws have been drafted and passed in the wake of the Sept 11 terror attacks in the United States, generating debate not only around Asia but in the West as well.

Understandably, some Asian countries were quick to ride on the wave and justify existing legislation pertaining to security which has traditionally been deemed 'anti-human rights'.

Malaysia for one, said that Western countries were now emulating its controversial Internal Security Act (ISA) to deal with terrorism effectively, citing the US and Australia as examples.

However, is a good security law about preventive detention and other pre-emptive measures alone?

Despite the different political cultures, should other aspects of fundamental rights and individual freedom be taken into account in order to sustain democratic institutions in countries like Malaysia?

Australian High Commissioner Peter Varghese helps shed some light on these questions during an exclusive interview at his office in Kuala Lumpur yesterday.

Malaysiakini: Senator Robert Hill (Australia's defence minister) was reported by the local media as saying he understood the justification for the ISA during his recent visit here. Is this true?

Varghese: I think the headlines were simplistic. That's the nature of headlines, I suppose. But if you read what Senator Hill said and look at the full transcript, it is not quite as some headlines had reported.

What Senator Hill said was since the Sept 11 attacks, a lot of countries have to grapple with the issue of how to introduce effective legislation to combat terrorism and at the same time uphold fundamental principles of the rule of law and natural justice in due process. We are all trying to do that since Sept 11 in a much more direct way than before.

In Australia, we are in the process of finalising the anti-terrorism legislation. That process generated a huge amount of debate within the government, opposition and in Parliament. That legislation is still to be finalised but a lot of government positions would have to be adapted and changed in the course of that debate.

For example, the draft submitted to the Parliament includes giving power to the attorney-general and foreign minister to proscribe organisations on the basis that they were linked to terrorist organisations.

This measure was not accepted by Parliament. It was changed so that only the AG could proscribe organisations that had been named by the United Nations security council as terrorist organisations.

There is no ready-made answer for theses issues. All these have to be decided in accordance with national political culture. The ISA is a matter for the Malaysian government and its people. It is not for countries like Australia to dictate provisions for legislation, just as we would not welcome other countries telling us what our domestic legislation should involve.

Australia is a strong supporter of rule of law, natural justice and fundamental human rights. We seek to apply these principles in our legislation which have also been debated a lot in Malaysia when it comes to the ISA.

The US' Patriot Act applies to only non-citizens. Is it the same for the Australian anti-terrorism legislation?

Our legislation is to apply to Australians rather than non-Australians. It is to strengthen our capacity to deal with terrorist suspects. Before the Sept 11 attacks, a lot of our legislation was rather incomplete when it came to terrorism. It was not that focused on terrorism.

This new legislation is designed to take up on how we would deal with Australians who are suspected to be involved in terrorist organisations, the funding of these organisations, and Australians who may be involved in international terrorist groups.

Sydney was said to be a target of the perpetrators of the Sept 11 attacks at one point. How did Australia take this?

Everyone is a target these days. Everyone is more of a target than what we thought we were before Sept 11. One of the reasons why Australia is a strong supporter of war against terrorism is because we did not see it as an attack on US but as an attack on open society, an attack on international community of which Australia is a member.

There is an additional element involved for Australia to take a strong stand on terrorism. We obviously have to take into account our own assessment of any threat to Australian interests, something which we keep under very close review.

Is there any provision for preventive detention under Australia's new anti-terrorism law?

The government's initial proposal was to allow detention up to 48 hours without charge. That was one of the controversial provisions. Some people argue that it was an excessive amount of time. I am not sure if that issue had finally been resolved because the legislation is still a subject of continuing discussion. But that 48 hours represents the limit of the debate. People argue for either much less than that or none at all. That's something that we have to work out in Parliament.

What is the maximum period for detention without charge at the moment?

At the federal level, we don't have detention without charge. And the draft proposal was to provide for 48 hours of detention without charge. It seems to me that we may end up with something much less but I don't know if the domestic debate will come out that way.

But the proposed detention still permits a trial if there's evidence?

Sure, of course. The principle of our legal system is that when the director of prosecution believes that there is sufficient evidence for prosecution, then the prosecution goes forth in open court.

And the detention itself is challengeable in court or subject to judicial review?

Well, at the end, everything is challengeable in court. At the moment, we don't have detention without charge. But it is still a draft so I can't give you a definite picture.

The theme revolves around a balance between collective security and individual freedom. While countering terrorism, individual freedom should not be compromised.

Yes, it is a very important issue. Getting that balance right is something that we are all struggling with. At the end of the day, the fight against terrorism is the fight in support of an open society.

An open society is based on rule of law, natural justice, and the human rights. From Australia's point of view, we think it is possible to do both to have effective legislation to combat terrorism but not jeopardise those basic principles.

With a strong judiciary?

A strong judiciary is important in any country. It is one of the foundations of order and one of the foundations of a successful society and a successful economy.

If you don't have the rule of law upheld by a strong judiciary, then you can't build an economy and a modern democracy. The judiciary is an absolutely fundamental institution.

Part 2 tomorrow