All under control? Recent issues in Australia’s legal response to counter-terrorism

By The Hon. John von Doussa QC, President, Human Rights and Equal Opportunity Commission

13 November 2006

Human Rights and Equal Opportunity Commission Forum, Sydney


I would like to acknowledge the Gadigal people of the Eora nation, the traditional owners and custodians of the land where we are meeting on today.

I would also like to thank our distinguished guests, the Attorney General, the Honorable Philip Ruddock MP, and Professor George Williams for participating in this forum.

BALANCING NATIONAL SECURITY AND HUMAN RIGHTS

In the post-September 11 world there has been vigorous debate about whether new counter-terrorism laws strike the right balance between protecting people from the threat of terrorism and preserving the rights and freedoms which are the DNA of democracy.

I’ll begin with the common ground. It is self-evident that terrorism is a gross violation of fundamental human rights. The threat of terrorism is real. The Government has both a right and a duty to assess the risk of a terrorist attack and to take action to guard against the worst case scenario.

Yet despite the real fears about a terrorist attack in Australia, we can agree that such fears must not fuel for a ‘whatever it takes’ approach to counter-terrorism laws. A ‘human rights free’ approach to counter-terrorism would be unprincipled, counter-productive and anti-democratic.

The question of how to strike the right balance between the interests of national security and preserving and protecting human rights lies at the heart of counter-terrorism debates.

WHY MERITS REVIEW MATTERS

When it comes to new counter-terrorism laws, HREOC has consistently emphasised the need for review mechanisms to check that the exercise of executive decision making powers are proportionate and necessary in the particular circumstances. Under international human rights law the litmus test of proportionality should be whether the power is the least restrictive way to protect public safety.

In our view to provide an adequate 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, and the proportionality of the action which is being taken.  Importantly, when we look at issues like the proscription of terrorist organisations the problem is not the fact that the power exists but that the exercise of the power is not subject to adequate review.

While the Attorney-General’s decision to proscribe a terrorist organisation is subject to ADJR review, it is not subject to merits review. Merits review matters because if the proscription decision is made on the wrong facts the decision could violate the right to freedom of expression or association of people who happen to have some innocent connection with the organisation as a long list of offences are derived from a person’s association with a ‘terrorist organisation’.

THE RIGHT TO A FAIR TRIAL

So far debates about counter-terrorism laws have focused on the expansion of executive powers and the new role of the judiciary in issuing control orders and confirming 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.

The right to a fair trial is ‘a central pillar of our criminal justice system’.[1] 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 Australia’s Constitution.


THE RULE AGAINST INVOLUNTARY CONFESSIONS

Both international human rights law and domestic criminal law are very clear that one of the main features of a fair trial is that a person charged with a criminal offence must not be forced to testify against himself or confess guilt.[2]

Some sections of the media attacked the recent decision of the Victorian Court of Appeal in the Jack Thomas case [3], saying that it was a setback in the war on terror. But if you look closely, this case was a routine application of the long-established principle that evidence of a confession can not be admitted unless it was voluntarily made.

The principle that admissions must be voluntary is there for two very simple reasons. First, on principle we should not be encouraging the use of force in the collection of evidence. Second, evidence obtained in a situation where a person thinks they have no choice but to admit to certain behaviour is inherently unreliable. As Chief Justice Gleeson recently observed the rule against the admissibility of involuntary confessions is a necessary inconvenience because ‘[t]he alternative: - receiving evidence of forced confessions - is a price we are not willing to pay in order to secure convictions.[4]

Our evidence laws are vital in meeting the fundamental requirements of a fair trial. Yet there are worrying signs that in a climate of fear previously well-worn principles governing the treatment of suspects are being eroded.

One international example is the recent introduction of the United States Military Commissions Act 2006. This law 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 and evidence obtained by coercion may be admitted in some circumstances.

Back in Australia, the Attorney has expressed his view that sleep deprivation is not a form of torture. The federal Minister for Justice and Customs, Christopher Ellison, has gone a step further saying that while Australian laws prevented the use of sleep deprivation in criminal investigations, sleep deprivation may be permissible as part of a counter-terrorism operation.[5]

Regardless of how sleep deprivation is defined it is a coercive technique for obtaining information that should not be admitted in a court of criminal justice. And it is clearly a technique that amounts to inhuman and degrading treatment in breach of human rights law.

Currently, Part 1C of the Crimes Act embodies the basic common law requirements to ensure that the accused has a fair trial including: that a person must not be subject to cruel, inhuman and degrading treatment[6]; and informing a person of their right to see a lawyer.[7]

Earlier this year the Sheller inquiry into Australia’s counter-terrorism laws considered – and rejected – proposals by the Commonwealth Director of Public Prosecutions to amend the Crimes Act 1914 (Cth) ‘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’.[8]

It is now notorious that some foreign states have tortured suspected terrorists. In the current climate, not only should suggestions to relax 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.

This is not just 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.

THE RIGHT TO KNOW THE CASE AGAINST YOU

A second defining characteristic of the right to a fair trial is the right to know the case against you. The right to know the case against you is so fundamental that the United States Supreme Court recently 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”.[9] 

In this age of terrorism the question of how to balance the interests of open justice and procedural fairness against the public interest in protecting national security will be a reoccurring issue in court proceedings.

Under the National Security Information (Criminal and Civil Proceedings) Act 2004 evidence in terrorism trials can be admitted in a closed hearing from which even the defendant may be excluded, at least for part of the evidence. The Act provides that, in considering whether to exclude information in criminal proceedings the court must give greater weight to national security interests than any adverse effect on the defendant’s right to a fair hearing.[10]

While the Court retains its inherent power to stay proceedings that may have a substantial adverse effect on the defendant’s right to a fair hearing, this may not be an adequate safeguard against unfairness. Firstly, in the current climate trial, I believe there is a risk that trial judges may be unduly deferential to the crown case. Secondly, 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.[11]

The Courts have long had power to make orders to suppress security sensitive evidence where its disclosure would be against the public interest. Yet in the contemporary context of court proceedings in terrorism matters the question of how to balance fundamental rights, like the right to know the case against you, and the right to choose your lawyer against the public interest in protecting national security is coming into much sharper focus.

At the moment the Commonwealth is seeking a permanent injunction in the Supreme Court of New South Wales restraining two lawyers – Mr Houda and Mr Lange - from acting for a man accused for terrorism offences. The Commonwealth application relies, in part, on the arguments that the lawyers’ obtained access to confidential information which they should not have seen and that the lawyers’ knowledge of this information creates an untenable conflict between their duty to represent the interests of the accused and their obligations to the Court and the Commonwealth.

In preliminary proceedings the lawyers representing Mr Houda and Mr Lange sought access to confidential materials in order to respond to the injunction application.[12] While the judge stated he had no reason to doubt that Mr Houda and Mr Lange’s legal representatives undertaking not to disclose the confidential materials, his Honour held the risk of ‘inadvertent disclosure’ and ‘the real possibility of a threat to national security’ outweighed the interests of disclosure to either the applicants legal representatives or a court appointed special counsel.

The question of how to strike the balance between open justice and national security will always depend on the particular facts and circumstances of the case. In extraordinary circumstances it may be necessary to suppress information because of national security concerns. However, I think we need to be more creative about how we remedy the possible adverse effect on the rights of defendants to know and respond to the case against them.

One possibility would be creating an office of the special advocate. A special advocate is a specially appointed security cleared lawyer who can go ‘behind the curtain of secrecy’ and then act in the interests of a party to proceedings in circumstances where that party, and the party’s legal representative, have been excluded from attending closed hearings or accessing certain evidence.

While an office of the Special Advocate is not ideal, it may provide encouragement to judges to appoint special advocates in cases where their presence may provide a substantial measure of procedural justice not otherwise available.

THIS ISN’T ABOUT WHO THEY ARE ...

Some people say terrorists have forfeited their rights. Clearly 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’.[13]

In Australia there is no Charter of Rights requiring the Courts to consider whether counter-terrorism laws comply with human rights principles. However, Australian criminal courts play a vital role in protecting the right to a fair trial and this bulwark against injustice must not be compromised.

What we also need to remember is that promoting and preserving human rights is a vital counter-terrorism strategy. An essential strategy in countering the extremism that breeds terrorism is to win ‘the contest of ideas’[14] by rigorously defending the basic human rights and freedoms which form ‘the bedrock of dignity and democracy that make our societies worth protecting’.[15]


This task becomes infinitely more difficult if we undermine our own human rights credentials. 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 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.[16]


Misunderstandings and fearfulness are not a reason to resile from legislative action to prevent terrorism. One way to help limit these negative effects is to make sure that counter-terrorism powers are subject to judicial review and merits review. Such measures will guard against abuse, error and illegality and help reassure the Muslim community that the laws will not be exercised in an arbitrary or discriminatory way.

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 strain 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. Clearly we must also work to address any extremist elements that exist within a minority of Australia’s Muslim population with strategies that promote inclusion, tolerance and respect for human rights.

The Government has recognised the need to address these problems by granting $4.4 million to HREOC over the next four years to bring together law enforcement agencies and Muslim communities to address issues of conflict and discrimination and to promote human rights education in Muslim communities.

These challenges reach far beyond the legal response to terrorism. Yet the way our laws respond to terrorism sends a crucial message about the value Australia, as a democratic nation, places on fundamental rights and freedoms.


[1]Dietrich v the Queen (1992) 177 CLR 292, 298 (Mason CJ, McHugh J).

[2] ICCPR, Art 14(1)(f)

[3]R v Thomas [2006] VSCA 165 (18 August 2006)

[4] Chief Justice Murray Gleeson, ‘A Core Value’, paper presented at the Judicial Conference of Australia Annual Colloquium, 3 October 2006.

[5] ‘Row over sleep deprivation, torture’, Sydney Morning Herald, October 11 2006.

[6] Section 23

[7] Section 23G.

[8] Security Legislation Review Committee, Report of the Security Legislation Review Committee, (2006) Report of the Sheller Inquiry, [17.5], [17.11].

[9]Salim Ahmed Hamdan v Donald H Rumsfeld, Secretary of State 546 U.S. (2006)

[10]National Security Information (Civil and Criminal Proceedings) Act 2004, s31

[11] It is noted that s 19 (5) of National Security Information (Civil and Criminal proceedings) Act 2004 states that in considering whether to order the stay of a civil proceeding the court must consider the extent of any financial loss that a party would suffer as a result of proceedings being stayed, and (b) whether a party has reasonable prospects of obtaining a remedy in the proceeding; and (c) any other matter the court considers relevant.

[12] Regina v Khazaal [2006] NSWSC 1061

[13] US Senator John McCain, ‘McCain Statement on Detainee Amendments’, press release, Wednesday 5 October 2006

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

[15] 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.

[16] Security Legislation Review Committee, Report of the Security Legislation Review Committee, (2006) Report of the Sheller Inquiry, [10.97].

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