10th International Criminal Congress
Burswood Entertainment Complex, Perth, Australia
Thursday 19 October 2006
The Hon. John von Doussa QC, President,
Human Rights and Equal Opportunity Commission (HREOC)
Criminal Justice in a Climate of Fear -- Reflections on the legal response to terrorism
I would like to acknowledge the Noongar people on whose traditional land we meet today.
A climate of fear
The topic of this seminar is ‘Criminal Justice in a climate of fear’. The word terrorism is not mentioned and yet the subject invites discussion of the impact of terrorism on life and laws in Australia.
Post-September 11 the fear of terrorism is real. Commuters packed into trains at peak hour now feel a flicker of fear about what was once simply unimaginable. Governments fear not only the carnage and the tragedy, but the damning words ‘it could have been prevented’.
This fear is understandable. The threat of terrorism is patently legitimate. For every horrific terrorist attack the world has witnessed, many more have been prevented. The government has both a right and a duty to take action to prevent the worst-case scenario.1 Yet despite the real fears about a terrorist attack in Australia, these fears must not be used as fuel for a ‘whatever it takes’ approach to counter-terrorism.
Instead, it is imperative that the legal response to the threat of terrorism is rational, reasonable, guided by the principle of proportionality and consistent with the rule of law.2
In the post September 11 world we clearly need effective counter-terrorism laws. Reasonable people can agree that terrorism is a grave threat to human rights just as reasonable people can agree that a ‘human rights free’ approach to counter-terrorism would be unprincipled, counter-productive and anti-democratic.
The crucial challenge facing Australia – and indeed all democratic nations – is how to strike the right balance between human rights and national security. Protecting and preserving the human rights and freedoms that lie at the heart of our democracy is not simply a matter of principle, it’s a crucial strategy in the fight against terrorism.
If we want to win the ‘war on terror’ we must not only introduce effective counter-terrorism laws, we must maintain the moral and ethical high ground by rigorously defending the basic rights and freedoms which are the DNA of democracy.
In a climate where many members of the Muslim community are fearful that counter-terrorism laws will unfairly target Muslims, the old adage that justice must not only be done, but be seen to be done is more relevant than ever.
The recent Security Legislation Review Committee Report (the Sheller Report) warned that ‘misunderstandings and fearfulness’ among Australia’s Muslim community will ‘tend to undermine the aims of the security legislation’. The report commented:
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.3
Misunderstandings and fearfulness are not a reason to resile from legislative action to prevent terrorism. But the need to allay these fears is another important reason to make sure that counter-terrorism powers are accompanied by checks and balances on the exercise of the new powers– like judicial review and merits review. These review mechanisms not only guard against abuse, error and illegality, they are also an important way of assuring the Muslim community that the laws will not be exercised in an arbitrary or discriminatory way.
An overview of counter-terrorism laws in Australia
Part of the anxiety about counter-terrorism laws can be attributed to the fact that the size and scope of new counter-terrorism legislation is such that the practical impact of the laws are difficult for lawyers, let alone lay persons, to grasp.
In the last five years counter-terrorism laws have dramatically reshaped the legal landscape in Australia. Terrorism is an unprecedented threat which demands an innovative legislative response which equips law enforcement agencies to prevent a terrorist act before it actually occurs.
Yet in responding to this demand we must make sure that the exercise of counter-terrorism powers does not disproportionately infringe human rights. The litmus test for proportionately should be that the exercise of a counter-terrorism power must be the least restrictive way of protecting the public from a terrorist act in the particular circumstances.4
One of the most concerning trends of counter-terrorism laws in Australia is the expansion of executive power without corresponding checks and balances. Decisions that were traditionally the preserve of the criminal justice system - such as depriving a person of his or her liberty – are now moving into the hands of the executive.
Since 2001 there have been three major packages of counter-terrorism laws. The first raft of laws, enacted in the wake of September 11, introduced a wide range of preparatory criminal offences to enable law enforcement agencies to target people who are planning or preparing a terrorist act before a terrorist act actually occurs.
Accompanying the preparatory offences is the power for the federal Attorney-General to proscribe terrorist organisations. This power can be exercised if the Attorney is satisfied on reasonable grounds that the organization directly or indirectly plans, assists, fosters or advocates the commission of a ‘terrorist act’.
The Attorney’s decision to proscribe a terrorist organisation can result in criminal charges against people on the basis of their connection with that organisation. Yet despite the fact that a long list of derivative offences flow from a person’s association with a terrorist organisation, there is no merits review of the Attorney’s decision to proscribe a terrorist organisation and, most importantly, no way for defendants to test the veracity of facts on which a proscription order was made.
In 2003 amendments to the Australasian Security Intelligence Organisation Act 1979 gave unprecedented new powers to our security apparatus, including not only the power to detain and question suspected terrorists, but the power to detain and question non-suspects who might have information about the planning or commission of a terrorist offence.
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, and a new sedition offence. These powers were enacted in the Anti-Terrorism Act (No.2) 2005 and are now contained in Part 5.3 of the Criminal Code.5
Counter-terrorism laws have not only expanded the power of the executive to make decisions which may infringe fundamental rights and freedoms, they have created an unprecedented new role for judges who may now find themselves issuing control orders, confirming preventative detention orders and negotiating the application of new national security information laws to both civil and criminal proceedings.
Professor George Williams has discussed how Part 5.3 of the Criminal Code departs from and challenges, traditional criminal law principles like the presumption of innocence and the right not to be detained without charge. What I want to focus on now is the conduct of the criminal trials of suspected terrorists.
The Right to a Fair Trial
The right to a fair trial is ‘a central pillar of our criminal justice system’.6 If proceedings may result in an unfair trial the court has an inherent judicial power to stay proceedings to prevent a miscarriage of justice. 7 As Deane J observed in Dietrich v The Queen, the concept of the fair trial ‘provides the ultimate rationale and touchstone of the rules and practices which the common law requires to be observed in the administration of substantive criminal law’.8
Australia has agreed to respect the features of a fair trial set out by article 14 of the International Covenant of Civil and Political Rights (the ICCPR). Indeed, the right to a fair trial is so fundamental it has attainted the status of international customary law.
This was recently acknowledged in Salim Ahmed Hamdan v Donald H Rumsfeld, Secretary of State9 where the United States Supreme Court heldthat the Geneva Conventions’ requirement to afford all the judicial guarantees which are recognised as indispensable by civilised peoples ‘must be understood to incorporate at least the barest of those trial protections that have been recognised in customary international law’. In particular, the Court found that the right of an accused ‘absent disruptive conduct or consent, [to] be present for his trial and … privy to the evidence against him’ is ‘indisputably part of the customary international law’. 10
Chapter III of the Australian Constitution arguably, and I would suggest most probably, protects the right to a fair trial.11 The former High Court Justice McHugh has argued:
[o]nce it is accepted that the Constitution guarantees the right of a fair trial, it must follow that Chapter III also protects litigants from legislative and other acts that might compromise the fairness of any civil or criminal trial in federal jurisdiction.12
While Justice McHugh observes that there have been no judicial attempts to catalogue all the attributes of a fair trial, there may be ‘many constitutional rights that flow from the constitutional right to a fair trial’.13
One of the features of a fair trial identified by the ICCPR is that a person charged with a criminal offence must not be compelled to testify against himself or confess guilt.14 In the domestic arena this right is protected by the laws governing the admissibility of evidence.
R v Thomas
The recent decision of the Victorian Court of Appeal in R v Thomas was attacked by some sections of the media as a setback in the war on terror. However, beyond the hyperbole, this case involved a routine application of the long established principle that evidence of a confession can not be admitted unless it was voluntarily made. As Sir Owen Dixon stated in McDermott v R (1948) 16if a ‘statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence of pressure, it can not be voluntary’.
In R v Thomas the Victorian Court of Appeal quashed Thomas’ convictions for receiving funds from a terrorist organisation and possessing a falsified Australian passport on the basis that an interview the Australian Federal Police (AFP) conducted with Thomas in Pakistan was inadmissible. While nothing occurred in the AFP interview itself to overbear Thomas’ will, the Court 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.
The principle that admissions must be voluntary operates to ensure the veracity of evidence and the reliability of our criminal justice system. The onus rests on the prosecution to establish on the balance of probabilities that a confessional statement made by an accused person is voluntary. In a recent speech the Chief Justice of High Court observed:
The rule against the admissibility of involuntary confessions is no doubt an inconvenience for those who enforce the law. It is an inconvenience they are obliged to accept. The alternative - receiving evidence of forced confessions - is a price we are not willing to pay in order to secure convictions.17
Our evidence laws are vital 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 should not turn a blind eye to the possible use of torture or duress to extract an involuntary and unreliable confession.
In this context, it was concerning to read the Attorney-General’s view that sleep deprivation is not a form of torture.18 Regardless of how sleep deprivation is defined – and for the record, I consider it is a form of torture– it is clearly a technique of obtaining information that may produce unreliable evidence that should not be admitted in a court of criminal justice.
In a recent speech the AFP Commissioner, Mick Keelty said Australian federal police were prohibited at law from using sleep deprivation as an interrogation technique, adding:
We attempted as best we can to adhere to those [legislative] requirements offshore and we certainly adhere to them here in Australia, otherwise evidence is affected by the way we operated … So the AFP doesn’t enter into any sort of unfair tactics and we are constrained by legislation, and quite appropriately so.19
However, there are worrying signs that in a climate of fear previously well-worn principles governing the treatment of suspects may be eroded.
The introduction yesterday of the United States Military Commissions Act 2006 undermines the Western world’s commitment to a fair trial. The Act creates two tiers of justice: one for ‘unlawful enemy combatants’ and another for everyone else. Under the Act suspected terrorists will be unable to challenge the legality of their detention in civilian courts, evidence obtained by coercion may be admitted in some circumstances, and the President gets to interpret the meaning and application of the Geneva Conventions.
Back in Australia, last week the federal Minister for Justice and Customs, Christopher Ellison, said while Australian laws prevented the use of sleep deprivation in criminal investigations, sleep deprivation may be permissible as part of a counter-terrorism operation.20
Earlier this year the Sheller inquiry considered – and rejected – proposals by the Commonwealth Director of Public Prosecutions to amend the Crimes Act 1914 (Cth) (the Crimes Act) ‘to specifically allow the admissibility of evidence in circumstances where the AFP have not complied with Part 1C overseas but have done all that they could reasonably be expected to do to comply with the requirements’.21
Division 3 of Part 1C of the Crimes Act sets out the obligations of investigating officials in terrorism offences. It embodies the basic common law requirements to ensure that an accused has a fair trial including: that a person must not be subject to cruel, inhuman and degrading treatment22; and informing a person of their right to see a lawyer.23 Currently, nothing in Part 1C affects the common law burden on the prosecution to prove the voluntariness of an admission or confession by a person.24
It is now notorious that some foreign states have tortured suspected terrorists. In the current climate, not only should suggestions to relax that the existing safeguards against cruel, inhuman and degrading treatment of suspects held overseas be rejected, but new laws should clearly prohibit the admission of evidence obtained by torture.
Some people say terrorists have forfeited their rights. Yes, terrorists have no respect for human rights. But, as the United States Senator John McCain so eloquently stated: ‘this isn’t about who they are. This is about us. These are the values that distinguish us from our enemies’.25
Yet sometimes we fail to make these values clear. Last year, The Law and Justice Legislation Amendment (Video Evidence and Other Measures) Act 2005 introduced new regime for the taking of video evidence in criminal proceedings for federal terrorism offences and enables videos from overseas to be admitted in proceedings.26 However, the Act failed to explicitly prohibit the admission of video evidence obtained by torture, inhuman or degrading treatment. 27
Australia has an obligation under article 7 of the ICCPR and Article 15 of the Convention against Torture and Other Cruel Inhuman and Degrading Treatment (CAT) to prohibit the use of evidence obtained through torture or cruel, inhuman or degrading treatment or punishment.28 This is not only a matter of principle, but a matter of practicality.
Mistreatment of suspects casts a cloud of doubt over the veracity and voluntariness of any admissions or confessions which are obtained. As Kirby P observed in R v Swaffield, unreliable evidence not only undermines the prosecution’s prospects, it ‘undermines community confidence in the administration of justice and in law enforcement.’29
So far debates about whether we are striking the right balance between national security and human rights have focused on the expansion of executive powers and the new role of the judiciary in issuing control orders and preventative detention orders. However, as people begin to be charged and prosecuted for terrorism offences, the focus of debate is now turning to the conduct of criminal trials.
In his recent Magna Carta lecture in Sydney, the United Kingdom Lord Chancellor, Lord Falconer, emphasised that the role of judges is to decide ‘the legality of the acts taken to fight terrorism, not how to fight terrorism’. His Lordship added that:
The level of threat, and 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. 30
The questions reflect the international human rights law principle that any actions that infringe human rights must be necessary and proportionate to respond to the gravity of the threat. In the United Kingdom, the operation of the Human Rights Act 1998 (UK) means that English courts can – indeed must - ask these questions.
In Australia there is no Charter of Rights requiring the Courts to consider whether counter-terrorism laws comply with human rights principles. However, the capacity of Australian criminal courts to ensure that the defendant receives a fair trial is a vital bulwark against injustice. While it is undoubtedly the proper role of the executive and the legislature to decide how to fight terrorism, governments must avoid promoting laws that would interfere with the right to a fair trial. Preserving the right to a fair trial is not only consistent with Australia’s international obligations, and a proud common law tradition, it is arguably a fundamental requirement of Chapter III of the Constitution.
In the absence of an Australian Bill of Rights, it is timely to repeat Professor David Feldman’s recent observation that ‘the beneficial effect of human rights on public decision making does not [solely] depend on judges’.31
Striking the right balance between national security and human rights should be a crucial issue in the pre-legislative process of formulating policy and drafting legislation. However, there is concerning evidence that our existing pre-legislative process pay inadequate attention to human rights principles.
While no one can question the value of parliamentary committees scrutinising new Bills, this process is subject to fundamental limitations. The federal parliamentary 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.
While HREOC has concerns that some aspects of Australia’s counter-terrorism laws may disproportionately infringe human rights and freedoms, it is noteworthy that in many cases the laws that have been enacted are far less alarming than the original bills.
I would suggest that if cabinet submissions about new counter-terrorism powers had been accompanied by a human rights impact statement and the Attorney had been required to present a human rights compatibility statement along with the counter-terrorism bills in 2002, 2003 and 2005, a lot of the acrimonious debate that brought about better checks and balances in the final legislation would not have been necessary.
The final, and most significant, limitation of parliamentary committees is that the government is under absolutely no obligation to implement– or even respond to - their recommendations. The result is that too often key recommendations are ignored-- as was the case with the Legal and Constitutional Committee report on the Anti-Terrorism Bill (No.2) 2005 and the Parliamentary Joint Committee’s unanimousreport on proposed amendments to the ASIO Act.
Under the Charter of Rights and Responsibilities Act 2006 (Vic) (‘the Victoria Charter) the Victorian Government must pay attention to the human rights impact of new laws and policies:
- submissions to Cabinet about new laws or policy proposals must be accompanied by a Human Rights Impact Statement;
- new Bills must be accompanied by a human rights compatibility statement;
- a parliamentary scrutiny committee must independently assess the compatibility of the Bill with human rights; and
- crucially, parliament must justify its actions if it decides to pass laws which are inconsistent with human rights principles.
Incorporating human rights principles in the law and policy-making process will help ensure that counter-terrorism laws strike the right balance between national security and human rights and will help highlight that in order to effectively fight terrorism we need to do far more than pass tough new laws.
Getting the legal response to terrorism right is vital. Yet the law has its limits. While fear of terrorism is understandable, in the current climate there are some fears which we must strive to allay. While many fears among Australia’s Muslim community about counter-terrorism laws are unfounded, there is a risk these fears may become fuel for extremist propaganda. This is why it is important not only to make sure counter-terrorism powers are subject to full review by the courts, but to implement the Sheller Report’s recommendation for governments to make greater efforts to:
understand and address the concerns and fears of members of those [Muslim and Arab] communities so that practical and immediate programs can be developed to allay them. 32
More broadly, we need to be conscious of the corrosive effect of fear on community relations in Australia. In some pockets of public opinion there is a virulent seam of anti-Muslim prejudice fuelled by the erroneous belief that all Muslims are, by virtue of faith, terrorists or terrorist sympathisers. Such prejudices and stereotypes must be dispelled.
In a tense and sometimes hostile environment, experiences of discrimination can alienate and isolate members of the Muslim community. We need to address the extremist elements that exist within small sections of the Australia’s Muslim population with strategies that promote inclusion, tolerance and respect for human rights.
In many respects these challenges reach far beyond the courtrooms of the criminal justice system. However, in a democracy, the criminal justice system should be a powerful symbol of the value our society places on the principles of fairness and equality. In the current climate it is vital that we do not become too frightened to defend the same rights and freedoms we seek to protect.
 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.
 As its ‘guiding principle’ the recent Security Legislation Review Committee Inquiry (the Sheller Inquiry) considered ‘whether the relevant legislation constitutes a reasonably proportionate means of achieving the object of protecting the security of people living in Australia and Australians overseas’. See Security Legislation Review Committee, Report of the Security Legislation Review Committee, (2006) Report of the Sheller Inquiry, 3.
 Security Legislation Review Committee, Report of the Security Legislation Review Committee, (2006) Report of the Sheller Inquiry, [10.97].
 Art 4 of the International Covenant of Civil and Political Rights (ICCCPR) envisages that human rights may be justifiably infringed by States in times of public emergency. While some rights – including the right to life and the right not to be subject to torture - cannot be suspended in any circumstances, Art 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'. In order for States to derogate from their obligations 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. To date Australia has not sought to invoke Art 4.
 The states have enacted interlocking legislation, albeit with some significant and well-publicised variations.
 Dietrich v the Queen (1992) 177 CLR 292, 298 (Mason CJ, McHugh J).
 Ibid 326 (Deane J).
 548 U.S.(2006)
 Ibid pp70-72
 See Dietrich v R (1992) 177 CLR 292
 ‘Does Chapter II of the Constitution protect substantive as well as procedural rights?’ the 2001 Sir Maurice Byers lecture by the Hon. Justice M.H McHugh AC High Court of Australia on 30 November 2001.
 ICCPR, Art 14(1)(f)
 R v Thomas  VSCA 165 (18 August 2006)
 76 CLR 501
 Chief Justice Murray Gleeson, ‘A Core Value’, paper presented at the Judicial Conference of Australia Annual Colloquium, 3 October 2006.
 Nick Butterly, ‘That’s not torture – Ruddock defends sleep deprivation’, The Daily Telegraph, 2 October 2006.
 Mark Dodd, ‘Keelty rejects ‘torture’, The Australian, 5 October 2006.
 ‘Row over sleep deprivation, torture’, Sydney Morning Herald, October 11 2006.
 Security Legislation Review Committee, Report of the Security Legislation Review Committee, (2006) Report of the Sheller Inquiry, [17.5], [17.11].
 Crimes Act 1914 (Cth), s 23
 Ibid, s 23G.
 Ibid, s 23S
 US Senator John McCain, ‘McCain Statement on Detainee Amendments’, press release, Wednesday 5 October 2006
 See Part 1AE Crimes Act 1914 (Cth)
 It is noted that evidence that is obtained by torture or inhuman and degrading treatment may still be excluded at common law because the prosecution has failed to establish, on the balance of probabilities, that the confession or admission was voluntarily made. The Court may also decide to exercise its discretion to exclude evidence which is improperly obtained. See Bunning v Cross (1978) 141 CLR 54. However, the Commission believes that The Law and Justice Legislation Amendment (Video Evidence and Other Measures) Act 2005 would benefit from a clear statement that evidence obtained torture and inhuman and degrading treatment should not be admitted.
 The Human Rights Committee has described that obligation under the ICCPR in the following terms: ‘It is important for the discouragement of violations under article 7 that the law must prohibit the use of admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment’. See Human Rights Committee, General Comment 20: Replaces general comment 7 concerning prohibition of torture and cruel treatment or punishment (Art. 7) : 10/03/92, 12. The Committee Against Torture held that article 15 obliged a state to ‘ascertain whether or not statements constituting part of the evidence of a procedure for which it is competent have been made as a result of torture.’ The Committee also indicated that this obligation applies to evidence obtained from witnesses in other states. See PE v France Convention Against Torture Communication No. 193/2001, UN Doc CAT/C/29/D/193/2001.
 R v Swaffield (1998) 192 CLR 159, .
 Rt Hon Lord Falconer of Thornton, Lord Chancellor and Secretary of State for Constitutional Affairs, ‘The role of judges in a modern Democracy’ presented at the Magna Carta Lecture, Sydney, Australia, 13 September 2006.
 Professor David Feldman, ‘The roles of Parliament in Protecting Human Rights: A view from the UK”, address given at the Human Rights and Legislatures Conference, Melbourne University, 20-22 July 2006.
 See Security Legislation Review Committee, Report of the Security Legislation Review Committee, (2006) Report of the Sheller Inquiry, Recommendation 2, p 8.