INCORPORATING HUMAN RIGHTS PRINCIPLES INTO NATIONAL SECURITY MEASURES
THE HON JOHN VON DOUSSA QC
PRESIDENT HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
INTERNATIONAL CONFERENCE ON TERRORISM, HUMAN SECURITY AND DEVELOPMENT: HUMAN RIGHTS PERSPECTIVES
CITY UNIVERSITY OF HONG KONG
16-17 October 2007
Since the terrorist attacks on September 11 2001, Governments around the world have created a raft of new counter-terrorism laws. In Australia alone, over 40 new laws have created new criminal offences, new detention and questioning powers for police and security apparatus, new powers for the Attorney-General to proscribe terrorist organisations, new ways to control people’s movement and activities without criminal convictions, and new investigative powers for police and security agencies.
Many of these new laws are unprecedented in Australia’s legal history. Yet despite the novel legal character of the new powers, too often the debate which has accompanied counter-terrorism laws has been hurried and hostile to human rights perspectives. Those who express concern that counter-terrorism laws may unnecessarily trespass on well-worn legal rights are accused of being ‘soft on terror’, with one prominent commentator bemoaning a ‘lawyer class adored by terrorists for making their job of jihad that much easier’.1
The characterisation of human rights as antithetical to national security is inaccurate, and unproductive. Contrary to the stereotype that human rights advocates want to stymie effective counter-terrorism laws, the Australian Human Rights Equal Opportunity Commission has always maintained that Governments have both a right, and a duty, to introduce counter-terrorism measures but only if such measures comply with Australia’s human rights obligations. This is consistent with United Nations Resolution 1373 which requires Governments to take such action as is necessary to prevent and prosecute terrorism but only if such action conforms with international human rights, humanitarian and refugee law.2
But what do human rights compatible counter-terrorism laws look like? When critics suggest that counter-terrorism laws contravene human rights principles they are often met with the rejoinder: well, what would you do differently? This question can be answered at different levels of specificity. Many of HREOC’s submissions to parliamentary inquiries into counter-terrorism bills identify how small but significant amendments could reduce the risks of human rights violations. This detailed analysis is essential part of good lawmaking and one of the (many) reasons why counter-terrorism bills should always be subject to rigorous review by the Senate Legal and Constitutional Committee. But while the human rights issues raised by counter-terrorism laws can range from ensuring that no-one is subject to arbitrary detention to preserving the rights to freedom of expression and association some common indicia of a ‘human rights approach’ to counter-terrorism measures emerge.
Today, I want to talk at this more general level about six key principles of a ‘human rights approach’ to counter-terrorism measures.
I DO NOT VIOLATE NON-DEROGABLE HUMAN RIGHTS
The 1st principle is that governments must not violate non-derogable human rights. International human rights law provides a carefully calibrated set of scales which enable governments to balance national security and human rights. This balance is achieved by recognising that sometimes it is necessary to limit individual rights to protect national security or respond to situations of public emergency. However, this balancing exercise can not be used to excuse the inexcusable and some rights – like the freedom of thought, the right to life and the right to be free from torture or cruel inhuman and degrading treatment e – can not be suspended in any circumstances.
Governments should treat non-derogable rights as a line in sand. Legislation which trespasses past this line should not even be contemplated. Shoot to kill powers, for example, or laws which enable confessions obtained by torture or cruel, inhuman or degrading treatment to be admitted into evidence, should never make it onto the drafting table. In the wake of national and international reports warning of a rising tide of racism and intolerance directed at Arab and Muslim communities3, States must also remember that the prohibition of racial discrimination is a pre-emptory norm of international law from which no derogation is permitted.4
Importantly, States must recognise that while the right to a fair trial is not listed as a non-derogable provision in article 4(2) of the ICCPR,5 the United Nations Human Rights Committee has stated that the fundamental requirements of fair trial must not be abrogated in any circumstances.6 The importance of the right to a fair trial in the context of counter-terrorism proceedings was reinforced in Hamden v Rumsfeld wherethe United States Supreme Court held 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’.7
II DEROGABLE RIGHTS SHOULD ONLY BE INFRINGED IN ACCORDANCE WITH HUMAN RIGHTS LAW
The 2nd principle is that derogable rights should only be infringed in accordance with human rights law. International human rights law permits states to take protective actions which limit derogable human rights in carefully defined circumstances. Article 4 of the ICCPR sets out the human rights – including the right to liberty and the right to freedom of association – that may be justifiably infringed by States 'in times of public emergency which threatens the life of the nation'.8 The United Nations Human Rights Committee has recognised that terrorism may, under very specific conditions, create a state of emergency.
In 2004, the United Kingdom’s House of Lords also accepted that the threat of terrorism may constitute a ‘public emergency’.9 However, the Court 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 Following this reasoning the House of Lords held that although there was a ‘public emergency’, this state of emergency could not justify discriminatory counter-terrorism measures under which foreign nationals, but not British nationals, could be detained without trial.
The ICCPR permits States to limit some rights for legitimate and defined purposes even when the threat of terrorism does not amount to a ‘public emergency’ for the purposes of Article 4. For example, article 19 of the ICCPR protects the right to freedom of expression. However, the effect of article 19(3) is that this right is subject to such restrictions that are necessary and proportionate to protect national security in a democratic society.11 For example, if laws which limit freedom of expression are so vague as to be incapable of precise application it will be difficult to characterise the laws as necessary and proportionate. But if laws are carefully targeted at expression which is ‘directly causally responsible for increasing the actual likelihood of a terrorist act occurring’12 then they are more likely to pass the proportionality test.
The fundamental litmus test that must be met by any law that seeks to restrict a non-derograble ICCPR right is the proportionality test.13 While the concept of proportionality may sound like a vague, malleable concept, international human rights law has posed a practical test: is the limiting measure the least restrictive means of achieving the relevant purpose?
This is a test which is easy to translate to domestic legislation: for example, HREOC considers that where orders (for example, control orders or preventative detention orders) are being made that may infringe a person’s rights, the Court or authority issuing the order should be required to consider whether the order is the ‘least restrictive means’ of protecting the public from a terrorist act.
III RESPECT THE ROLE OF AN INDEPENDENT JUDICIARY
The 3rd principle is to respect the role of an independent judiciary in overseeing the application of counter-terrorism laws. While this principle may seem straightforward there are three trends which I believe subtly undermine the proper functions of an independent judiciary.
Firstly, despite international recognition of the vital role of an independent and impartial judiciary in overseeing the application of counter-terrorism laws, new counter-terrorism power tend to be located in the executive, rather than the judicial branch, of government.
While in extraordinary circumstances time may not permit judicial oversight of the authorization in advance of the exercise of the special powers, HREOC believes that in most cases the exercise of counter-terrorism powers that may infringe fundamental rights and liberties can and should be authorised by a judicial officer.
Secondly, the legal tests the court is asked to apply must be capable of meaningful application. In other words, judicial oversight must provide more than simply the veneer of legality.
The United Nations High Commissioner has observed that an important way of preserving the right to a fair trial is to retain ‘effective judicial control over qualifications by the executive branch that certain information may not be disclosed in order to protect national interests’.14 However, there is reason to be concerned that some counter-terrorism laws unduly fetter the discretion of judges to protect the features of a fair trial, including the right of know what exactly it is alleged you have done.
This problem is illustrated by the provisions of the the National Security Information (Criminal and Civil Proceedings) Act 2004. Under this Act the Court has the power to decide whether or not to withhold information from the defendant on national security grounds. 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 certificate from the Attorney-General which seeks to prevent the disclosure of the information is likely to prejudice national security. As the former Australian 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 weights 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.15
Thirdly, the judicial decisions about the application of counter-terrorism laws must be seen to be free from political interference. Those charged with counter-terrorism offences must have their guilt or innocence determined in the judicial arena; not the hot-house of domestic politics. The executive arm of government should be wary of exercising decision-making powers in circumstances which appear to ‘trump’ decisions of the judiciary.
The problems that arise when the executive is perceived to interfere in the criminal justice process were illustrated in Australia by the case of Dr Mohammed Haneef. Following the attempted Glasgow bombings, Dr Haneef was detained for 12 days under anti-terrorism legislation before being charged with the offence of providing support to a terrorist organisation. A magistrate granted Dr Haneef bail on the basis that the prosecution case was weak. The same day the Minister for Immigration exercised his executive discretion under the Migration Act 1958 (Cth) and revoked Dr Haneef’s visa on character grounds. The practical effect of this decision was that while a judicial decision secured Dr Haneef’s immediate liberty, the exercise of executive discretion returned him to (immigration) detention detention.
The criminal charges against Dr Haneef were later dropped due to lack of evidence. On application for judicial review, a single judge of the federal court quashed the Minister of Immigration’s decision to revoke Dr Haneef’s visa.16 This decision is being appealed by the Minister. However, regardless of the outcome of this litigation, it remains unclear why the Minister made his decision in the middle of, instead of following the conclusion of, the criminal justice process. Dr Haneef could not be deported from Australia until the conclusion of any criminal proceedings and the timing of the Minister’s decision aroused great cynicism about the interaction of the executive and the judiciary in counter-terrorism proceedings.
IV ESTABLISH REGULAR, INDEPENDENT REVIEW OF THE OPERATION OF COUNTER-TERRORISM LAWS
The 4th principle is to establish regular, independent review of the operation of counter-terrorism laws. While aspects of Australian counter-terrorism laws have been subject to independent review, other parts have not. Regular, independent review of counter-terrorism legislation is vital because of:
- the potential of some of the new counter-terrorism laws to disproportionately infringe fundamental rights, such as the right to liberty and the right to a fair trial; and
- the general lack of adequate judicial review mechanisms in relation to various aspects of the terrorism regime; and
- the limited ability - particularly in countries, like Australia, which lack a Charter of Rights - for a person to test the laws against established principles of human rights law.
Counter-terrorism reviews should not just focus on one aspect of the counter-terrorism legal framework but consider how 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 that appointing a grab-bag of discrete committees because it allows the independent reviewer to develop expertise in a very complex area of law. A permanent independent reviewer should be given powers to gather information from a wide range of sources, including intelligence agencies; and be required to consider the human rights impacts of the laws.
Finally, the recommendations of the independent reviewer need to be taken seriously. In Australia, too often the recommendations of committees and inquiries into counter-terrorism legislation have (as in the case of the Australian Law Reform’s recommendations to reform the law of sedition or the Sheller Inquiry’s recommendations to reform certain aspects of counter-terrorism legislation) simply been ignored.
V MAKE SURE PERSONS WHO ARE SUBJECT TO COUNTER-TERRORISM LAWS CAN CHALLENGE THE VALIDITY OF DECISIONS THAT IMPACT ON THEIR RIGHTS
The 5th principle is to make sure persons who are subject to count-terrorism laws can challenge the validity of decisions which impact on their rights. The question of whether counter-terrorism laws infringe an individual’s human rights can often only be resolved in light of the facts of the particular case. It is therefore imperative that persons who may be caught up in the exercise of the new powers can seek judicial review, to check if the decision has been made legally, andindependent merits review, to check if the decision was made on the correct facts. Without these review mechanisms there are no safeguards to protect individuals from the injustice that would result from the abuse, misuse, or erroneous application of the counter-terrorism powers.
Judicial review can correct a legal error but it can not restore a person’s reputation. When an individual’s rights are violated as a result of the misuse or abuse of counter-terrorism powers, the individual should have access to an effective remedy which may, depending on the damage suffered, include compensation. This approach is consistent with article 2(3) of the ICCPR which provides that a person has a right to an effective remedy if his or her human rights are violated.
VI INTRODUCE STRONGER HUMAN RIGHTS PROTECTIONS
The overarching principle is that governments should give domestic force to international human rights law by introducing explicit statutory protections for human rights. Many of the principles I have outlined can be put into practice by introducing a statutory Charter of Human Rights.
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’.17
In 2006, a review of aspects of Australia’s counter-terrorism laws observed that government agencies suggesting ’…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.’18
Significantly, a 2006 review of the Human Rights Act 1998 (UK) found that it has had a significant, and beneficial, effect on policy formation for three reasons:
- formal procedures for ensuring compatibility with human rights improved transparency and parliamentary accountability;
- the dialogue between the judiciary and the parliament led to laws and policies which are inconsistent with human rights being changed; and
- public authorities were more likely to behave in conformity with human rights.19
Under a statutory Charter of Rights Parliament can no longer overlook the human rights impact of new laws and policies. This is because under a Charter of Rights:
- 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.
Making human rights an integral part of the law and policy making process helps creates the framework for a ‘human rights approach’ to counter-terrorism laws. However, ultimately, if we are serious about providing legal checks against the temptation for executive overreach we need to give Courts the power to assess the lawfulness of the exercise of counter-terrorism powers against human rights standards. It is important to recognise that this is a judicial, not a political function. As the Lord Chancellor of the United Kingdom, Lord Falconer, observed in 2006:
…courts are not conducting the fight against terrorism. Nor are they deciding the measures to be used. The level of threat, and the extent to which exceptional measures are required, are for the executive, or the legislature. The questions the courts in the UK ask are: first, do these measures infringe any individual's fundamental human rights; second if they do, is there a justification for the infringement; and third, is the infringement the minimum necessary to protect our democracy?20
In my view, giving the courts the power to ask these questions is essential to give effect to democratic values and to ensure the human rights compatibility of counter-terrorism measures.
Strong counter-terrorism measures are obviously necessary to prevent the gross violations of human rights that accompany all acts of terrorism. However, if these laws undermine democratic rights and freedoms, then we provide moral ammunition for the cause of terrorists. To quote the former United Nations Secretary General Kofi Annan:
…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.21
Adopting a human rights approach to counter-terrorism laws combines principle and pragmatism. Such an approach can be used by lawmakers to achieve national security without disproportionately limiting the very rights and liberties that are essential to the maintenance of the rule of law, and ultimately, our sense of security.
 Janet Albrechtsen, ‘Jihadists owe Kirby a thank you’, The Australian (Sydney), 8 August 2007.
 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).
 Office of the United Nations High Commissioner for Human Rights , Digest of Jurisprudence of the UN and Regional Organisations on the Protection of Human Rights while countering terrorism, 8; HREOC, Ismaع - Listen: National Consultations on eliminating prejudice against Arab and Muslim Australians, (2004); Security Legislation Review Committee, Report of the Security Legislation Review Committee (2006) [10.97].
 Office of the United Nations High Commissioner for Human Rights , Digest of Jurisprudence of the UN and Regional Organisations on the Protection of Human Rights while countering terrorism, 8.
 Pursuant to article 4(2), the non-derogable articles of the ICCPR are 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18.
 Human Rights Committee, General Comment No. 29: States of Emergency (Article 4), 31 August 2001, 16.
 Hamdan v Rumsfeld, 126 S.Ct 2749 (2006). In this case the Court held that the military commission set up to try Salim Ahmed Hamdan (“Hamdan”) was ultra vires the President’s power under Art 21 of the Uniform Military Justice Code (UCMJ), which confers congressional authorisation upon the President to establish military commissions. The Court held that the UCMJ only authorises the President to convene military commissions that adopt the rules and procedures of courts-martial, unless practical need (of which none was shown to exist in this case) requires deviation from those rules and procedures. The effect of this decision is that the President must seek express and specific congressional authority to establish the military commissions sought to be established to try Guantanamo Bay detainees.
 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 (Human Rights Committee, General Comment No. 29: States of Emergency (Article 4), 31 August 2001).
 A (FC) and others (FC) v Secretary of State for the Home Department  UKHL 56
 Ibid at 30.
 Article 19(3).
 Joint declaration by the United Nations Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression, 21 December 2005.
 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. See UN Human Rights Committee, General Comment No. 29 - States of Emergency (Article 4), at 4
United Nations General Assembly, Protecting human rights and fundamental freedoms while countering terrorism: Report of the Secretary General, 24 August 2007, A/62/150, 11.
 Hon Michael McHugh AC QC, ‘Terrorism Legislation and the Constitution’ (2006) 28 Australian Bar Review 117.
Haneef v Minister for Immigration and Citizenship  FCA 1273 (21 August 2007).
 ABC Television, ‘UK counter-terrorism laws subject to greater scrutiny’, Lateline,24 October 2005.
 Security Legislation Review Committee, Report of the Security Legislation Review Committee (2006) [5.2].
 United Kingdom Department for Constitutional Affairs, Review of the Implementation of the Human Rights Act (2006) . 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.
 RT Hon Lord Falconer of Thoroton - Lord Chancellor and Secretary of State for Constitutional Affairs, ‘The role of judges in a modern democracy’, the Magna Cart Lecture, Sydney, 13 September 2006.
 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).