Terrorist activity around the world has been directed against a range of human rights, including
- the right to life
- rights to non-discrimination, including equal rights for women and girls
- right to a fair trial (through attacks on courts and lawyers)
- freedom of religion and belief
- freedom of expression and information
- freedom of assembly and association
- the right to vote and participate in public affairs
Measures against terrorism, therefore, can have an important role in protecting human rights.
However, counter-terrorism laws can also have a profound impact in limiting fundamental human rights and freedoms, including:
- the right to a fair trial
- the right not to be subjected to arbitrary detention
- freedom from torture and cruel, inhuman or degrading treatment or punishment
- the right to freedom of expression
- the right to freedom of movement
- the right to privacy
- the right to non-discrimination
- the right to an effective remedy for a breach of human rights.
Australia is committed to upholding these rights under treates including the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.
While there is a need for laws and policies to ensure that Australians are protected from security threats, all efforts to protect Australia’s security should comply with the international human rights standards Australia has agreed to uphold.
However, because these treaties have not been incorporated into domestic law, the Commission considers that some counter-terrorism laws in Australia have been adopted without adequate consideration of the impacts on fundamental rights and freedoms.
Since the events in the United States on 11 September 2001, the Australian Government has introduced more than 40 new counter-terrorism laws. Amongst other things, these laws have created:
- new criminal offences
- new detention and questioning powers for police and security agencies
- new powers for the Attorney-General to proscribe terrorist organisations
- new means of controlling people’s movement and activities.
Concerns regarding Australia’s counter-terrorism laws have been raised by community groups, human rights advocates and several official review bodies, including the Security Legislation Review Committee, the Parliamentary Joint Committee on Intelligence and Security and the Australian Law Reform Commission.
The Australian Human Rights Commission has supported independent review mechanisms being established to ensure that all current and future counter-terrorism laws comply with Australia’s human rights obligations. For further details, see the Commission's submission to the Inquiry into the National Security Legislation Monitor Bill 2009, and the Commission's submission to the Inquiry into the Independent Reviewer of Terrorism Laws Bill 2008 [No. 2].
For further information regarding human rights concerns raised by Australia’s counter-terrorism laws, see the Commission's 2008 background paper, A Human Rights Guide to Australia’s Counter-Terrorism Laws.
This 2008 background paper provides an overview of some of the human rights concerns raised by Australia’s counter-terrorism laws. Issues covered include the following:
- What impact can counter-terrorism laws have on human rights?
- What counter-terrorism provisions have been introduced into the Commonwealth Criminal Code?
- What counter-terrorism powers does the Australian Security Intelligence Organisation (‘ASIO’) have?
- What counter-terrorism provisions have been introduced into the Commonwealth Crimes Act?
- What information can be kept secret on national security grounds?
- What are some examples of counter-terrorism cases which raise human rights issues?
- What reforms would help ensure counter-terrorism laws uphold human rights?
- Where can I find out more about counter-terrorism laws?
The Australian Human Rights Commission has made numerous submissions to parliamentary inquiries, advocating the need to ensure that Australia’s counter-terrorism laws comply with international human rights standards. The Commission's submissions include the following:
- COAG Review of Counter-Terrorism Legislation - September 2012
- Review of Counter-Terrorism and National Security Legislation - September 2012
- Submission to the Attorney-General's discussion paper on proposed amendments to national security legislation (October 2009)
- Submission to the Senate Standing Committee on Finance and Public Administration, Inquiry into the National Security Legislation Monitor Bill 2009 (July 2009)
- Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Independent Reviewer of Terrorism Laws Bill 2008 [No. 2] (September 2008)
- Submission to the Clarke Inquiry on the Case of Dr Mohamed Haneef (May 2008)
- Submission to the Parliamentary Joint Committee on Intelligence and Security, Review of the power to proscribe terrorist organisations (February 2007)
- Submission to the Senate Legal and Constitutional Affairs Committee on the Anti-Money Laundering and Counter-Terrorism Financing Bill 2006 (November 2006)
- Comments on the Anti-Money Laundering and Terrorism Financing Bill 2006 and draft consolidated AML/TF Rules (August 2006)
- Submission to the Senate Legal and Constitutional Legislation Committee, Inquiry into the Defence Legislation Amendment (Aid To Civilian Authorities) Bill 2005 (January 2006)
- Submission to the Security Legislation Review Committee on the Security Legislation Amendment (Terrorism) Act 2002 and the Criminal Code Amendment (Terrorism) Act 2003 (January 2006)
- Submission to the Senate Legal and Constitutional Legislation Committee, Inquiry into the Anti-Terrorism Bill (No 2) 2005 (November 2005)
- Submission to the Senate Legal and Constitutional Legislation Committee, Inquiry into the Law and Justice Legislation Amendment (Video Evidence and Other Measures) Bill 2005 (October 2005)
- Submission to the Senate Legal and Constitutional Legislation Committee on the National Security Legislation Amendment Bill 2005 (April 2005)
- Submission to the Parliamentary Joint Committee on ASIO, ASIS and DSD: Review of Division 3 Part III of the ASIO Act 1979 (Cth) (April 2005)
- Submission to the Senate Legal and Constitutional Legislation Committee on the provisions of the Anti-Terrorism Bill (No. 2) 2004 (July 2004)
- Submission to the Senate Legal and Constitutional Legislation Committee, Inquiry into the Provisions of the National Security Information (Criminal Proceedings) Bill 2004 and the National Security Information (Criminal Proceedings) (Consequential Amendments) Bill 2004 (July 2004)
- Submission to the Parliamentary Joint Committee on ASIO, ASIS and DSD (May 2002)
Click here to read more of the Commission’s submissions on counter-terrorism and national security issues.
Speeches by Commission members relating to counter-terrorism and human rights include the following:
- The Hon. John von Doussa QC, ‘Security and Human Rights in Australia: Australia’s counter-terrorism response’ Beijing Forum on Human Rights, 21-23 February 2008.
- The Hon. John von Doussa QC, ‘Incorporating Human Rights Principles into National Security Measures’ International Conference on Terrorism, Human Security and Development: Human Rights Perspectives, City University of Hong Kong, 16-17 October 2007.
- The Hon. John von Doussa QC, ‘All under control? Recent issues in Australia’s legal response to counter-terrorism’ Commission Forum, Sydney, 13 November 2006.
- The Hon. John von Doussa QC, ‘Criminal Justice in a Climate of Fear - Reflections on the legal response to terrorism’ 10th International Criminal Congress, Perth, 19 October 2006.
- The Hon. John von Doussa QC, ‘Reconciling human rights and counter-terrorism – a crucial challenge’ The Annual James Cook University Mayo Lecture, 12 September 2006.
- Dr Sev Ozdowki OAM, "The Importance of Australian Community in Protection of Human Rights during the War against Terrorism", 2003
Click here to read more speeches given by the President and Commissioners of the Australian Human Rights Commission.
Counter-terrorism laws in Australia:
- Chronology of counter-terrorism laws introduced in Australia since September 2001
- Australian Security Intelligence Organisation Act 1979 (ASIO Act)
- Crimes Act 1914 (Cth)
- Criminal Code Act 1995 (Cth)
- National Security Information (Criminal and Civil Proceedings) Act 2004
Reports regarding Australia’s counter-terrorism laws:
- Independent National Security Legislation Monitor
- Report of COAG Review of Anti-Terrorism Laws, March 2013
- Report of the Parliamentary Joint Committee on Intelligence and Security, Review of Security and Counter-Terrorism Legislation (December 2006)
- Report by the Australian Law Reform Commission, Fighting words: A Review of Sedition Laws in Australia (July 2006)
- Report of the Security Legislation Review Committee (June 2006)
Online resources - Australia:
- Internet resources on Terrorism Law: Australian Parliamentary Library
- Australian Government Counter-Terrorism White Paper, Securing Australia: Protecting our Community (2010)
- Anti-terrorism control orders in Australia and the United Kingdom: a comparison: Australian Parliamentary Library (2008)
- Australia 2020 Summit, Final Report, Chapter 9, Australia’s future security and prosperity in a rapidly changing region and world (2008)
- Australian Government discussion paper, Material that advocates terrorist acts (2007)
- Gilbert +Tobin Centre of Public Law
- Amnesty International Australia
- Anti-Terror Laws: ASIO, The Police and You produced by the Australian Muslim Civil Rights Advocacy Network
- Commission report, Ismaع – Listen: National Consultations on eliminating prejudice against Arab and Muslim Australians (2004)
Online resources - international:
- United Nations action to counter terrorism
- International treaties regarding terrorism
- United Nations Special Rapporteur on the promotion and protection of human rights while countering terrorism
- Human Rights, Terrorism and Counter-Terrorism factsheet produced by the Office of the United Nations High Commissioner for Human Rights
- European Court of Human Rights factsheet on cases on counter-terrorism and human rights (PDF) April 2013
- Amnesty International
- Human Rights Watch
- Andrew Lynch, Edwina MacDonald & George Williams(eds), Law and Liberty in the War on Terror, Federation Press (2007)
- Andrew Lynch & George Williams, What Price Security? Taking Stock of Australia's Anti-Terror Laws, University of New South Wales Press (2006)
- Ben Saul, Defining Terrorism in International Law, Oxford University Press (2006)
- Leigh Sales, Detainee 002: The Case of David Hicks, Melbourne University Press (2007)
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