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Doussa, John von --- "Reconciling Human Rights and Counter-terrorism-a Crucial Challenge" [2006] JCULawRw 6; (2006) 13 James Cook University Law Review 104


RECONCILING HUMAN RIGHTS AND COUNTER-TERRORISM—A CRUCIAL CHALLENGE

JOHN VON DOUSSA QC[?]

I. HUMAN RIGHTS VS. NATIONAL SECURITY:
A FALSE DICHOTOMY

In the wake of the September 11 terrorist attacks, the Australian Government introduced a raft of new counter-terrorism laws. These laws have created new criminal offences, new detention and questioning powers for the Australian Security and Intelligence Office (ASIO) and the Australian Federal police, new powers for the Attorney-General to proscribe terrorist organisations, new ways to control people’s movement and activities without criminal convictions (control orders), and new investigative powers for police and security agencies.

Many of these new laws are unprecedented in Australia’s legal history. The concerns expressed about the heightened risks of domestic terrorist attacks are legitimate and require innovative measures on the part of Government to protect national security. The crucial challenge facing Australia – and indeed all democratic nations – is how to effectively respond to the threat of terrorism without abandoning the fundamental human rights principles that are essential to the maintenance of the rule of law and the hallmark of free and democratic societies.

Striking the right balance between national security and human rights is crucial for both the success of our counter-terrorism strategies and to maintain the tolerant and democratic ideals of our multicultural country. Yet in the current climate there appears to be a disturbing trend to undermine any serious attempt to analyse the human rights compatibility of counter-terrorism legislation.

Debates about counter-terrorism laws are often characterised as an argument between the realists – who appreciate the need for tough new counter-terrorism legislation – and the out of touch – who fail to recognise the gravity of the terrorist threat.[1] Those who are concerned about the human rights compatibility of counter-terrorism laws are accused of defending terrorists or failing to take the threat of terrorism seriously.

Such characterisations are both inaccurate and unproductive. It is self-evident that terrorism itself is a gross violation of fundamental human rights. The threat of terrorism is patently legitimate. The Government has both a right and duty to take action to protect its citizens.[2] Equally, I do not believe anyone would seriously suggest that the threat of terrorism justifies the abandonment of the fundamental rights and freedoms embedded in our legal system and articulated in international human rights law.

The Commonwealth Government has consistently said that it recognises the need to balance counter-terrorism laws with human rights and that Australia’s national counter-terrorism policies must embody the democratic values Australia seeks to protect. However, as I will explain, my concern is that too often counter-terrorism laws have been developed without properly considering the potential human rights implications. This is a shame because it overlooks the ability of simple safeguards – like independent merits review or judicial review – to ameliorate fears that the new laws might be applied in a way that disproportionately infringes on fundamental rights and freedoms.

Some might ask ‘why worry about human rights’? Why do we need to preserve human rights in the face of those who show disregard and contempt for human rights? The answer is both principled and pragmatic – we must maintain the moral and ethical high ground. Terrorism is an ideologically and politically motivated assault on democratic rights and freedoms. An essential strategy in countering the extremism that breeds terrorism is to win ‘the contest of ideas’[3] by rigorously defending the basic human rights and freedoms which form ‘the bedrock of dignity and democracy that make our societies worth protecting’.[4] However, this task becomes infinitely more difficult if we undermine our own human rights credentials. As the former United Nations Secretary General Kofi Annan has observed:

…compromising human rights … facilitates achievement of the terrorist’s objective - by ceding to [them] the moral high ground, and provoking tension, hatred and mistrust of government among precisely those parts of the population where he is most likely to find recruits. Upholding human rights is not merely compatible with successful counter-terrorism strategy. It is an essential element.[5]

The Security Legislation Review Committee Report (the Sheller Report) expressed serious concerns about the way counter-terrorism laws were perceived by some members of Australia’s Muslim and Arab communities. The Report found that misunderstandings and fearfulness tend to undermine the effect of security legislation, adding:

The negative effects upon minority communities, and in particular the escalating radicalisation of young members of such communities, have the potential to cause long term damage to the Australian community. It is vital to remember that lessening the prospects of ‘homegrown’ terrorism is an essential part of an anti-terrorism strategy.[6]

This does not mean that we should resile from passing counter-terrorism laws for fear of causing offence to some sections of the community. But it is another good reason to make sure that counter-terrorism laws contain safeguards against abuse, error and illegality.

It is vital that far-reaching counter-terrorism powers with the potential to infringe fundamental human rights are subject to quick, effective and full review by independent courts of the land. It is only in this way that Australia’s Muslim community, whose members are being caught up in the new powers, will have any confidence in the government’s pronouncements that the laws are not being unfairly targeted at them. If that confidence cannot be built, the new powers might prove counter productive.

II. BALANCING HUMAN RIGHTS AND NATIONAL SECURITY

Despite the practical utility of integrating human rights principles into counter-terrorism strategies there is a persistent and popular misconception that international human rights laws are inflexible, esoteric principles which hamstring government efforts to respond effectively to danger. This idea that human rights are antithetical to national security fails to recognise the fact that international human rights law was forged in the wake of devastating periods of global conflict and already strikes a balance between security interests and the rights which are considered fundamental to being human.

It recognises that sometimes individual rights need to be balanced against the need to protect collective security. For example, article 12 of the International Covenant of Civil and Political Rights (ICCPR) which protects the right of freedom of movement can be subject to restrictions to protect national security if – and this is the important qualification –the restriction in question is the least intrusive means of effectively protecting national security.[7] In other words, international human rights law permits protective actions to be taken by states but demands that those actions be necessary and proportionate to meet the gravity of the threat. This approach was adopted by the Sheller Inquiry, who accepted HREOC’s submission that counter-terrorism laws must be proportionate to the aim of achieving national security.

Article 4 of the ICCPR also envisages that human rights may be justifiably infringed by States in times of public emergency, although to date Australia has not sought to rely on Article 4. Of course some rights – including the right to life and the right not to be subject to torture - cannot be suspended in any circumstances. Article 4 permits derogation from key human rights protections – like the right to liberty and the right to freedom of association –‘in times of public emergency which threatens the life of the nation’.[8]

In 2004, the United Kingdom’s House of Lords accepted that the threat of terrorism may constitute a ‘public emergency’.[9] However, it also emphasised that ‘measures taken by a member state in derogation of its obligations under the Convention should not go beyond what is strictly required by the exigencies of the situation’.[10] Ultimately the litmus test for the human rights compatibility of counter-terrorism is proportionality.[11] While the concept of proportionality may sound like a vague, malleable creature, offering only rhetorical comfort, international human rights law has posed a practical test: is the limiting measure the least restrictive means of achieving the relevant purpose?

III. COUNTER-TERRORISM LEGISLATION IN AUSTRALIA

Australia – like other Western nations – has responded to the threat of terrorism with new counter-terrorism laws. Before 2002, terrorism was not even an offence under the Criminal Code. In the aftermath of September 11, the government introduced the Security Legislation Amendment (Terrorism) Act 2002, which criminalised preparing, planning or committing a ‘terrorist act’ by creating a range of new terrorism offences, including ones that derive from being associated in different ways with an entity that is proscribed as a ‘terrorist organisation’.

The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 gave broad ranging powers to our security apparatus, including the power to obtain two types of warrants: questioning warrants and detention and questioning warrants. The purpose of these warrants is to obtain information about the planning or commission of a terrorist offence. The application of the detention and questioning warrants is not limited to persons suspected of committing an offence or to those with some involvement in planning a future offence. The provisions are aimed at anyone who (wittingly or unwittingly) is able to ‘substantially assist in the collection of intelligence that is important in relation to a terrorism offence’.[12]

Because a question and detention warrant can authorise the detention a person for up to seven days, the practical effect of this provision is that a person who is not suspected of a terrorism offence, can be detained for longer than a terrorist suspect under who is questioned by the Australian Federal Police under the Crimes Act 1914 (Cth). HREOC remains concerned that this legislative framework does not provide adequate protection against arbitrary detention, particularly in light of the potential for ‘repeat warrants’ to be granted.[13] In 2006 the legislation was re-enacted with a ten year sunset clause.[14]

In September 2005, in response to the ‘home-grown’ terrorist attacks on London, the Council of Australian Governments (COAG) agreed to introduce a range of new powers, including:

▪ control orders and preventive detention orders;

▪ ministerial power to declare prescribed security zones and police powers to stop, search and question persons in relation to terrorist acts; and

▪ updated sedition offences.

These powers were enacted in the Anti-Terrorism Act (No.2) 2005 (Cth). The states have enacted interlocking legislation, albeit with some significant and well-publicised variations.

IV. THE EFFECT OF NEW COUNTER-TERRORISM LAWS

Five years after September 11, Australia now has a web of counter-terrorism laws which deliver unprecedented new powers to the executive and create a range of new criminal offences. While there have been reviews of the operation of particular aspects of the new laws, most notably the recent Sheller Inquiry, there has been no regular and independent analysis of the overall operation of Australia’s counter-terrorism regime.

Regular and independent review of counter-terrorism laws is vital given the potential of some laws to disproportionately curtail fundamental human rights like the right to liberty and the right to a fair trial. The importance of independent review is only exacerbated by the lack of adequate judicial review mechanisms for some of the new executive decision making powers and the inability of a person to test these laws against the human rights standards set out in a bill of rights.

In my view, counter-terrorism reviews should not just focus on one aspect of the counter-terrorism legal framework but consider how Australia’s counter-terrorism laws are working as a whole. This is because sometimes different counter-terrorism powers interact to impact on people’s rights. For example, a person who is the subject of an application for a control order may not be informed of particular evidence in the case against him because it is information that is considered likely to prejudice national security within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004.

Establishing a permanent independent reviewer is a better option than appointing many different committees, because it allows the independent reviewer to develop expertise in a very complex area of law. In order to conduct a meaningful review, a permanent independent review should be given powers to:

▪ gather information from a wide range of sources, including our intelligence agencies;

▪ have the power to obtain information from any agency or person that he or she considers is relevant to the review; and

▪ be required to consider the human rights impact of the laws.

The importance of independent review of counter-terrorism laws has been recognised by the United Kingdom, where an Independent Reviewer reviews the operation of UK counter-terrorism laws including an annual review of the implications of any amendments proposed by the Secretary of State on the operation of the existing laws.

V. THE EXPANSION OF EXECUTIVE POWER

One of the disturbing trends in many new counter-terrorism laws is the expansion of executive decision-making without corresponding checks and balances. In a speech delivered in August 2006 Chief Justice Gleeson observed:

…the development in the Australia community of a cultural expectation that those in authority are able and willing to justify the exercise of power is one of the most important aspects of modern public life.[15]

Yet too often counter-terrorism laws powers are not subject to scrutiny where an exercise of power must be justified. Many executive decision-making powers under counter-terrorism laws – including action taken under the ASIO Act, the Telecommunications (Interception) Act 1979 and the decision to issue a preventative detention order - are all excluded from review under Schedule 1 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR).

While excluded decisions can still be the subject of judicial review at common law under section 75(v) of the Constitution and the Judiciary Act 1903 (Cth), this is the poor cousin of ADJR review. A crucial difference is that the ADJR enables the subject of a decision to obtain a written statement of the reasons for the decision. However, to provide a full audit of executive power, legislation needs to go beyond judicial review to merits review so that the person who is the subject of the exercise of power can challenge the factual basis upon which the decision was made.

One example of executive power which, in my view, is not subject to an adequate review process is the Federal Attorney-General’s power to proscribe a ‘terrorist organisation’. This power can be exercised where the Attorney General is satisfied on reasonable grounds that the organisation directly or indirectly plans, assists, fosters or advocates the commission of a ‘terrorist act’. HREOC is particularly concerned about the absence of statutory criteria for the exercise of the Attorney-General’s discretion to proscribe or de-list a terrorist organisation and the lack of opportunities for organisations or individuals to oppose the proposed proscription of an organisation. The sheer breadth of the Attorney General’s power creates a risk that, if a decision is made on the wrong facts or the powers are applied too expansively, the decision could violate the right to freedom of expression or association of innocent people who happen to have some connection with the organisation[16]as a long list of offences are derived from a person’s association with a ‘terrorist organisation’.

Significantly, there is no independent merits review of the Attorney-General’s decision to proscribe a terrorist organisation so there is no way to test the veracity of the facts on which the order was made. Ideally, in the interests of transparency and fairness, the decision to proscribe a terrorist organisation – unless the urgency of the situation dictates to the contrary – should be approved in advance by a judicial officer and be subject to ongoing judicial oversight.

VI. THE ROLE OF THE COURTS

Judicial scrutiny ensures that justice is being seen to be done; an objective that is particularly important in light of the growing sense of alienation and distrust of authority in parts of the Muslim community. So far I have focused on the need for adequate checks and balances on the exercise of the new executive decision-making powers. These safeguards are important because the new powers operate outside the framework of the criminal justice system.

The criminal justice system on the other hand already contains many built in safeguards – like the laws of evidence – which help ensure that regardless of what the crime is, the alleged offender will get a fair trial. However, the question of whether counter-terrorism laws protect the principle of a fair trial is too often sidelined as the media debate the guilt or innocence of suspected terrorists. This culture of trial by media is a recipe for outrage when the courts reach a different verdict.

For example, the decision of the Victorian Court of Appeal in R v Thomas[17] to quash the convictions against Jack Thomas for receiving funds from a terrorist organisation and possessing a falsified Australian passport provoked fierce debate about whether the decision was a moral miscarriage or an act of fidelity to well worn legal principles.[18] Behind the hyperbole, this case involved a routine application of long established principles relating to the admissibility of involuntary confessions in a criminal trial that can be traced back to the High Court’s decision in McDermott v R[19].

The Victorian Court of Appeal found that, as a result of the conditions in which Thomas was detained in Pakistan, the threats made that if he did not cooperate he would be indefinitely detained in either Pakistan or Guantanamo Bay, as well as threats made against his family, his admissions could not be characterised as voluntary. Therefore the Court set aside Mr Thomas’ convictions. The fact that on 20 December 2006 the Victorian Court of Criminal Appeal remitted Mr Thomas’ matter to the Supreme Court for a re-trial based on new evidence[20] does not in any way disturb the correctness of the Court’s earlier decision to quash convictions obtained on the basis of inadmissible evidence. On the contrary, the Court’s decision reflects the vital role our existing evidence laws play in meeting the fundamental requirements of a fair trial. If an Australian citizen is suspected of committing a terrorist offence it does not matter whether that person is interrogated here or overseas – we must not trespass down the slippery moral slope and permit the use of torture or duress to extract a confession that may not only be unreliable, but would be contrary to one of the most fundamental principles of international human rights laws.

The controversy surrounding the Victorian Court of Appeal’s decision was followed by news that the Australian Federal Police – with the consent of the Attorney General – had successfully applied to the Federal Magistrate’s Court for an interim control order against Mr Joseph Thomas. Mr Thomas then challenged the constitutional validity of Division 104 of the Criminal Code in the High Court.

VII. CONTROL ORDERS

Control orders are extraordinary powers which displace the long-held principle that the deprivation of liberty should only occur as a result of a criminal conviction. Division 104 of the Criminal Code gives federal courts the power to make a control order imposing certain obligations, prohibitions and restrictions on a person for the purpose of protecting the public from a terrorist act. The severity of obligations imposed by a control order can range from a prohibition or restriction on the person visiting a particular place, to wearing a tracking device, to preventing a person from using or accessing certain forms of communication technology (including the internet), to a requirement that a person remain at specified premises at specified times each day. Depending on the days and times specified, the order could constitute house arrest. This could amount to a deprivation of liberty without trial in breach of the prohibition on arbitrary detention (article 9(1) of the ICCPR). Control orders may also intrude upon other fundamental rights including the rights to freedom of expression (article 19 of the ICCPR), freedom of movement (article 12 of the ICCPR) and privacy (article 17 of the ICCPR).

Both Interim Control Orders and confirmed control orders can only be made if the court is satisfied on the balance of probabilities that:

▪ making the order would substantially assist in preventing a terrorist act, or that the person has provided training to, or received training from, a listed terrorist organization;[21] and

each of the obligations, prohibitions or restrictions imposed by the order are reasonably necessary, appropriate and adapted for the purpose of protecting the public from a terrorist act.[22]

In Thomas v Mowbray,[23]the High Court considered the following questions about the constitutional validity of control orders:

▪ Is Division 104 invalid because it confers on a federal court non-judicial power contrary to Chapter III of the Constitution?

▪ In so far as Division 104 confers judicial power on a federal court, does it authorise the exercise of that power in a manner contrary to Chapter III?

▪ Is Division 104 invalid because it is not supported by one or more express or implied heads of legislative power under the Constitution?

By a 5:2 majority (Gleeson CJ, Gummow and Crennan JJ, Callinan J, Heydon J; Kirby and Hayne J dissenting) the High Court upheld the constitutional validity of Division 104. The majority held that the power to restrict or interfere with a person’s liberty on the basis of what a person might do in the future, rather than on the basis of judicial determination of what a person has done, is not a power which can be exercised only legislatively or administratively. Gleeson CJ observed that the assumption that the power to make control orders can not be given to judges appears to carry the corollary that such power can be exercised only by the executive branch of government. His Honour stated that ‘the advantages in terms of protecting human rights, of such conclusion are not self-evident’, adding that ‘the exercise of powers, independently, impartially and judicially, especially when such powers affect the liberty of the individual would ordinarily be regarded as a good thing, not something to be avoided’.[24] In particular, the standard of ‘reasonably necessary’ and ‘reasonably appropriate and adapted’ for the purpose of protecting the public is not inherently too vague for use in judicial decision-making. The defence power alone was sufficient to support Division 104.

The majority also held that in so far as Division 104 confers judicial powers on federal courts, it authorised the use of such power in a manner contrary to Chapter III. Mr Thomas’ argued that that several features of control orders were incompatible with the exercise of federal judicial power, namely the ex parte nature of proceedings for interim control orders, the denial of natural justice to persons subject to an order, proof on the balance of probabilities, and the inability of the court to enforce its own orders. The majority of the High Court rejected this argument, holding that the outcome of each case was to be determined on its individual merits and there was nothing to suggest to issuing court was ‘a mere instrument of government’ However Gleeson CJ did note that this case was not concerned ‘with particular issues of procedural fairness that could arise where, for example, particular information is not made available to the subject of a control order or his or her lawyers. Issues of that kind would be established in the light of the facts of particular case’.

In dissent, Justice Michael Kirby concluded that Division 104 should be held to be invalid because it conferred non-judicial power on a Chapter III court. His Honour added that even if Division 104 could have been characterised as conferring judicial power, there were several features of the legislation which were incompatible with the exercise of judicial power. These offending features included:

▪ The fact that interim control orders are to be issued ex parte in all cases and not just in exceptional circumstances where that course is necessary or essential for particular reason;

▪ The ‘uniform minimisation of rights’ – the individual subject to the interim order is guaranteed no more than 48 hours notice of that order before a confirmation hearing and, moreover, the individual is only entitled to receive a summary of the grounds on which the interim order is used;

▪ By virtue of s 104.12A of the Criminal Code, the individual subject to an application for a control order may not be informed of particular evidence raised in the case against him; and

▪ Other countries with similar legal systems to Australia have legislated for the use of special advocates in circumstances where accused persons are not able to access the full case against them.[25]

The decision of the High Court in Thomas v Mowbray[26] concerned the question of whether control orders are constitutionally valid. The question of whether control orders are compatible with human rights standards might be answered differently.

While I am inclined to agree with Gleeson CJ about the value of judicial oversight in ensuring that powers which may infringe human rights are exercised independently and impartially, this oversight is only a meaningful way to safeguard human rights if the proportionality test applied by the courts is appropriately strict and the person subject to the application for the control order has an opportunity to respond to the case against him.

While as a matter of constitutional law the ‘reasonably necessary’ test that must be applied in determining whether or not a control order that may be made has been held to be a valid exercise of judicial power under Chapter III, this test does not reflect the strict proportionality test adopted by human rights law. Under international human rights the test of proportionality is whether the limiting measure is the least restrictive means of achieving the relevant purpose – in this case protecting the public from terrorism.

In practice the least restrictive means test would require the court to consider whether, in the vast armoury of counter-terrorism laws that already exist, there was an equally effective way to protect the public from a terrorist act which would have a less intrusive impact on fundamental rights and freedoms. The Senate Legal and Constitutional Committee Inquiry into the Anti-Terrorism Bill (No.2) 2005 recommended that the least restrictive means test be added. Unfortunately it was one of a number of important recommendations that never made it into the final text.[27]

VIII. THE RIGHT TO A FAIR TRIAL

The problems ex parte applications pose for the right to a fair hearing are not confined to the process of making control orders. The application of the National Security Information (Criminal and Civil Proceedings) Act 2004 (the National Security Information Act) raises important issues about the right to a fair hearing and the right to an effective remedy. A decision to hold a closed hearing excluding the defendant may, for example, diminish the defendant’s ability to fully respond to the case. The right to know the case against you is so fundamental that the United States Supreme Court said in Hamden v Rumsfeld that right of an accused to ‘be present for his trial and privy to the evidence against him, absent disruptive conduct or consent’ is ‘indisputably part of customary international law’.[28]

The prospect of convicting someone of one of the most serious crimes in the calendar when the case against the defendant is not fully revealed even to the defendant and the defendant’s lawyers is a frightening one and likely to undermine public confidence in the fairness of the legal system. The Act does provide that where the court considers unfairness may result from nondisclosure of information it may stay the proceedings. But two things may be said about that. The first is that there must be a high probability that where a person is on trial for a terrorist offence a court is likely to show deference to the Crown case, and be slow to use the power.

The second is that the National Security Information Act is not confined to criminal proceedings. In 2005 the Act was amended to cover civil proceedings – including control order applications. The power to stay proceedings would be of no comfort to a plaintiff who seeks a remedy in civil proceedings in respect of executive action that is alleged to be illegal or an abuse of power. A stay would simply defeat the action and leave the plaintiff without a remedy. The result is that there are now many situations where important decisions could be made and the person whose rights are at stake is either not allowed to be present or not allowed to be informed of all the evidence against him.

Under the National Security Information Act evidence that ‘is likely to prejudice national security’ must be brought to the attention of the federal Attorney General. The Attorney General has the power to issue a non-disclosure certificate that summarises or blacks out information that is likely to prejudice national security.[29] Where a witness might compromise national security by his or her mere presence, the Attorney-General may issue a certificate which prohibits the witness from appearing.

If the Attorney-General issues a certificate restricting access to evidence, the court must adjourn the principal hearing and hold a separate closed hearing to decide whether to disclose, withhold, summarise or black out (redact) the information or to prevent a witness from appearing in the substantive proceedings.[30]

While it is important that national security should be given great weight, it is also important that courts retain a flexible discretion to consider the circumstances of each particular case. In making this decision, the court is required to consider whether the order would have a substantial adverse effect on the defendant’s right to a fair hearing. However, the court must give the greatest weight to the Attorney-General’s certificate.[31] Under the Act the Attorney-General’s certificate is treated as conclusive evidence that ‘the disclosure of the information is likely to prejudice national security’.

While HREOC believes it is appropriate that national security concerns be given great weight, it is also important that courts be given a more meaningful discretion to consider the circumstances of each particular case. The current test unduly fetters this discretion. As the former High Court Justice, Michael McHugh observed:

It is no doubt true in theory the National Security Information (Criminal and Civil Proceedings) Act does not direct the court to make the order which the Attorney-General wants. But it does as close as it thinks it can. It weighs the exercise of the discretion in favour of the Attorney-General and in a practical sense directs the outcome of the closed hearing. How can a court make an order in favour of a fair trial when in exercising its discretion, it must give the issue of fair trial less weight than the Attorney-General’s certificate. [32]

A test that gives the court a more meaningful power to balance national security and human rights is necessary. However, I accept that there may still be circumstances where it is necessary to exclude information – or even the defendant – because of national security concerns. In these circumstances, I think we need to be more creative about how we remedy the possible adverse effect on the rights of the party.

One possibility would be the introduction of a special advocate procedure. A special advocate is a specially appointed security cleared lawyer who acts in the interests of a party to proceedings when that party, and the legal representative, have been excluded from attending closed hearings or accessing certain evidence. A Special Advocate’s relationship with the relevant party is different from the relationship between the ordinary lawyer and his or her client. The Special Advocate is not responsible to the relevant party. The special advocate is able to access excluded materials and make submissions in the party’s interest but can not communicate with the relevant party about the material. Special Advocates have been used in the United Kingdom and Canada in proceedings where a party to proceedings (and their legal representative, if they have one) have been excluded from attending hearings or viewing material relevant to proceedings. While the Special Advocate procedures are not ideal, they may provide a substantial measure of procedural justice not otherwise available.

IX. TOWARDS A BILL OF RIGHTS?

Unlike the United Kingdom, Australia does not have a Charter of Rights that requires the Parliament and the courts to consider whether counter-terrorism laws comply with human rights principles. While the United Kingdom’s counter-terrorism laws have provoked vigorous debate about their compatibility with human rights, UK counter-terrorism laws – unlike Australian laws – reflect the influence of the Human Rights Act 1998 (UK). For example, although Australia’s regime of control orders bears a strong similarity to the British system, in the United Kingdom different procedures are followed for the issuing of non-derogable control orders and derogable control orders, to ensure that the control order regime complies with the Human Rights Act 1998 (UK). A non-derogable control order can impose obligations on an individual so long as they are not incompatible with the individual’s right to liberty under Article 5 of the European Convention of Human Rights.[33] A derogable control order on the other hand can impose obligations which restrict an individual’s right to liberty.

The process for obtaining a derogable control order is more onerous than the process for obtaining a non-derogable control order. It must be apparent to the court that there is a public emergency that threatens the life of the nation and material which establishes (on the balance of probabilities) that the subject of the proposed order is or has been involved in terrorism related activity. Finally there must be reasonable grounds for believing that imposing restrictions which derogate from the subject’s right to liberty are necessary to protect the public from the risk of terrorism. [34]

The UK Government has not yet sought a derogable control order, but it has applied for, and been granted, a number of non-derogable control orders. Under the UK control order regime, because of the Human Rights Act and the European law that it applies, the courts are capable of testing whether the obligations imposed by a non-derogable control order are consistent with human rights standards. In Secretary of State for Home Department v JJ[35] the Court of Appeal upheld the decision of the trial judge that non-derogable control orders which confined the respondents to their flats for eighteen hours a day constituted a deprivation of liberty and were therefore invalid. The cases were remitted to the Home Secretary to devise a new non-derogable control order with obligations which were compatible with the Human Rights Act.

Dr Angela Ward has argued that the key difference between counter-terrorism laws in the United Kingdom and Australia is that the United Kingdom has overarching legislation (in the form of the Human Rights Act 1998) ‘designed to ensure that all arms of government act proportionately’.[36] Interestingly, a 2006 review of the Human Rights Act 1998 (UK) found that its real benefits lay in its impact on policy formulation. The Review found that the Human Rights Act 1998 (UK) (UK HRA) has had a significant, and beneficial, effect on policy formation for three reasons: formal procedures for ensuring compatibility with human rights have improved transparency and parliamentary accountability; the dialogue between the judiciary and the parliament has led to laws and policies which are inconsistent with human rights being changed; and the culture and behaviour of public authorities is now more compatible with human rights.[37]

Debates about the utility or otherwise of charters of rights are often dominated by arguments about the proper role of the judiciary. What I would like to do is to put aside arguments about unelected judiciaries and focus on how another aspect of a charter of rights – the pre-legislative requirements for parliamentary scrutiny – could integrate effectively human rights principles into the law and policy making process. As Professor David Feldman observed ‘the beneficial effect of human rights on public decision making does not depend on judges’.[38] The need to make sure that legislation wherever possible, is compatible with human rights is not a matter which should be left to chance.

While no one would deny the importance of scrutiny of proposed legislation by parliamentary committees, this process is subject to fundamental limitations. Crucially, the federal Senate Committee process occurs after the legislation has been drafted, the policy objectives formulated and, more often than not, after politicians have publicly committed to the Bill’s implementation. There is no obligation on the government to listen to or act on the Committee’s recommendations. There is no requirement for the government to provide a human rights compatibility statement about new counter-terrorism laws.

There is concerning evidence – found not only in the text of the laws but also in the practices of our Parliament – that the question of the human rights compatibility of counter-terrorism laws receives inadequate attention. The Sheller Report observed that submissions made by government agencies ‘at times passed over the invasive effect of particular legislation on human rights, and said little about particular steps that might have been taken by their agencies to alleviate such effects’ .[39]

Under a statutory charter of rights governments can no longer overlook the human rights impact of new laws and policies. This is because under the charter:

▪ where decisions need to be made about new laws or major policies, submissions to Cabinet must be accompanied by a Human Rights Impact Statement;

▪ an MP or the Attorney General must present a statement of human rights compatibility to parliament on the introduction of a Bill;

▪ a parliamentary scrutiny committee must independently assess the compatibility of the bill with human rights; and

▪ perhaps most importantly, Parliament must publicly explain its actions in the event that it decides to enact or maintain legislation that is inconsistent with human rights principles.

We need parliamentary processes that guarantee that Australia’s human rights obligations are taken seriously during the law and policy making process. In the event that the Parliament decides to pass legislation that is inconsistent with human rights obligations, it should be required to clearly justify its reasoning. Upholding human rights principles is a vital element of an effective counter-terrorism strategy. Striking the right balance between national security and human rights is not easy. But to improve our chances of getting the balance right we need to take rights seriously. A good way of achieving this would be for Parliaments to follow a process that requires the consideration of human rights principles in the formulation of new laws and policies.


*The author is the President of the Human Rights and Equal Opportunity Commission (HREOC). An earlier version of this paper was delivered at the 2006 Annual James Cook Mayo Lecture on 12 September 2006. The paper was updated to reflect developments in Australia in September 2007.

[1] See, eg, Janet Albrechtsen, ‘Human Rights Can No Longer Be Sacrosanct’, The Australian (Sydney), 13 September 2006.

[2] The United Nations Security Council Resolution 1373 required States to ensure that terrorists, their accomplices and supporters be brought to justice and that terrorist acts are established as serious criminal offences in domestic laws and the punishment duly reflects the seriousness of such terrorist acts. Resolution on Threats to International Peace and Security Caused by Terrorist Acts, SC Res 1373, UN SCOR, 56th sess, 4385th mtg, UN Doc S/Res/1373 (2001).

[3] George Williams, ‘Running the Risk of a Raft of Overreactions’, The Australian (Sydney), 4 September 2006.

[4] Professor David Feldman, ‘The Roles of Parliament in Protecting Human Rights: A View from the UK’ (Speech delivered at the Human Rights and Legislatures Conference, Melbourne University, 20-22 July 2006).

[5] Kofi Annan, ‘Address to the closing plenary of the International Summit on Democracy, Terrorism and Security, delivered in Madrid, Spain’ (Press Release, 10 March 2005).

[6]Security Legislation Review Committee, Report of the Security Legislation Review Committee (2006) [10.97].

[7] CCPR Human Rights Committee, General Comment No. 27 – Freedom of Movement (Article 12), [14], UN Doc CCPR/C/21/Rev.1/Add.9, General Comment No. 27 (1999).

[8] In order for States to derogate from their obligations under article 4 of the ICCPR in times of public emergency, art 4(1) provides that; the public emergency must threaten the life of the nation; the public emergency must be publicly proclaimed; the measures must be strictly required by the exigencies of the situation; the measures cannot be inconsistent with other requirements of international law; and the measures must not involve discrimination solely on the grounds of race, sex, colour, language, religion or social origin. Art 4(2) of the ICCPR mandates that certain rights are not subject to suspension under any circumstances. The list of non-derogable rights includes the right to life (article 6); freedom of thought, conscience and religion (article 18); freedom from torture or cruel, inhuman or degrading punishment or treatment (article 7); the right to recognition everywhere as a person before the law (article 16) and the principles of precision and non-retroactivity of criminal law (article 15). The Human Rights Committee has developed a list of elements that, in addition to the rights specified in article 4(2), cannot be subject to lawful derogation. CCPR Human Rights Committee, General Comment No. 29: States of Emergency (Article 4), UN Doc CCPR/C/21/Rev.1/Add.11, General Comment No. 29 (2001).

[9] A (FC) V SECRETARY OF STATE FOR THE HOME DEPARTMENT [2004] UKHL 56

[10] Ibid 30.

[11] The UN Human Rights Committee has stated that proportionality is a fundamental test that must be met for any form of restriction on human rights under the ICCPR. CCPR Human Rights Committee, General Comment No. 29 - States of Emergency (Article 4), [4], UN Doc CCPR/C/21/Rev.1/Add.11, General Comment No. 29 (2001).

[12] ASIO Act 1979 (Cth) s 34C(3)(c).

[13] HREOC, Submission to the Parliamentary Joint Committee on ASIO, ASIS and DSD: Review of Division 3 Part III of the ASIO ACT 1979 (Cth) (2005).

[14] ASIO Legislation Amendment Act 2006 (Cth).

[15] Chief Justice Murray Gleeson AC, ‘Outcome, Process and the Rule of Law’ (Speech delivered to the Administrative Appeals Tribunal’s 30th Anniversary Function, Canberra, 2 August 2006).

[16] See S Joseph ‘Australian Counter-Terrorism Legislation and the International Human Rights Framework’ [2004] UNSWLawJl 29; (2004) 27 University of New South Wales Law Journal 428, 438.

[17] [2006] VSCA 165 (18 August 2006).

[18] See, eg, Editorial, ‘It’s Protection of the Innocent’, The Canberra Times (Canberra), 21 August 2006; Editorial, ‘A Battle Lost in the War on Terror’, The Australian (Sydney), 21 August 2006.

[19] (1948) 76 CLR 501.

[20] Mr Thomas’ re-trial is expected to be heard in early 2008. Commonwealth Attorney General, David Hicks, Joseph ‘Jack’Thomas and Other Cases (2006) <http://www.ag.gov.au/www/agd/agd.nsf/Page/Nationalsecurity_DavidHicks, JosephJackThomas and other cases.

[21] Criminal Code 1995 (Cth) s 104.4 (1)(c ).

[22] Criminal Code 1995 (Cth) s 104.4 (1)(d). A terrorist act is defined in section 100.1 of the Criminal Code 1995(Cth) as ‘an action or threat of action’ which is done or made with the intention of: advancing a political, religious or ideological cause; and coercing, or influencing by intimidation, the government of the Commonwealth, State or Territory or the government of a foreign country or intimidating the public or a section of the public.

[23] [2007] HCA 33.

[24] Thomas v Mowbray [2007] HCA 33 17 (Gleeson CJ).

[25] Thomas v Mowbray [2007] HCA 33 364-365 (Kirby J).

[26] Thomas v Mowbray [2007] HCA 33.

[27] The inclusion of sunset clauses is an accepted means of guaranteeing parliamentary scrutiny and review of the ongoing necessity of exceptional powers. The Senate Legal and Constitutional Committee recommended that section 104.32 be amended to provide for a sunset period of five year. The Committee also recommended Division 104 be amended to include an express requirement for a public and independent 5 year review of the operation of Division 104. See, Senate Legal and Constitutional Committee Report – Anti-Terrorism Bill No. 2 (2005) [4.62-4.63].

[28] Hamdan v Rumsfeld, 126 S.Ct 2749 (2006).

[29] National Security Information Act (Criminal and Civil Proceedings) 2006 (Cth) s 38 F.

[30] National Security Information Act (Criminal and Civil Proceedings) 2006 (Cth) s 38G.

[31] National Security Information Act (Criminal and Civil Proceedings) 2006 (Cth) s 38L.

[32] Hon Michael McHugh AC QC, ‘Terrorism Legislation and the Constitution(2006) 28 Australian Bar Review 117.

[33]Prevention of Terrorism Act 2005 (UK) s 2.

[34]Prevention of Terrorism Act 2005 (UK) s 4.

[35] [2006] EWCA Civ 1141.

[36] ABC Television, ‘UK counter-terrorism laws subject to greater scrutiny’, Lateline, 24 October 2005.

[37] United Kingdom Department for Constitutional Affairs, Review of the Implementation of the Human Rights Act (2006) [4]. In response to perceived problems with the implementation of the UK HRA, the Review also concluded that decisions of the courts under the Act had not negatively impacted on the government’s ability to achieve its objectives in relation to crime, terrorism or immigration; nor had the Act significantly altered the constitutional balance between the Parliament, the Executive and the Judiciary.

[38] Feldman, above n 5.

[39] Security Legislation Review Committee, Report of the Security Legislation Review Committee (2006) [5.2].


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