Human Rights and Human Security

1 July 2006

The Hon John von Doussa, President, HREOC

President, Human Rights and Equal Opportunity Commission

I would like to acknowledge the Kurna people on whose land we meet today.

Firstly, I must applaud Amnesty International Australia’s campaign to secure a fair trial for David Hicks. I hope you take some heart from the recent US Supreme Court ruling that the military commissions set up to try prisoners at Guantanamo Bay are illegal and must be abandoned.

I welcome the opportunity to speak tonight about balancing human rights and human security from an Australian perspective. My concern is, and has been for some time now, that human rights are, at best, being treated as a footnote to the enactment of counter-terrorism legislation. A question for tonight is whether, in our efforts to redress the balance, we need a new tool, some sort of charter of rights?

The Balancing Act

In the last five years the spectre of terrorism has certainly changed the legal landscape of democratic nations. In the wake of September 11, Bali, Madrid and London there are concerns that the quest for security has led to the abrogation of many fundamental human rights and freedoms.

There are some who argue that human rights are the necessary casualty of human security. In the aftermath of September 11, commentators openly questioned whether the era of human rights had come and gone.[1] To others, human rights and human security are indivisible. Kofi Annan has observed:

Human security in its broadest sense, embraces far more than the absence of violent conflict. It encompasses human rights, good governance, access to education and health care and ensuring that each individual has opportunities and choices to fulfil his or her potential.[2]

This concept of human security is characterised by the freedom from violence and threats and the freedom to fulfil our potential. To quote the Attorney-General: “protecting human security requires the protection of both national security and civil liberties”.[3]

Unfortunately, it seems that in debates about counter-terrorism, ‘security’ often becomes shorthand for ‘national security’ and the broader concept of human security is lost. Protecting national security is an important and necessary task. However, we must avoid the trap of treating the relevance of human rights as inversely proportional to the threat to national security.

I am not one of those who argue that counter-terrorism legislation is unnecessary. Terrorism is a real and serious threat. The Government has an obligation to protect the lives of its citizens and, by extension, the right to life and the right to security of person.

The challenge facing Australia today is to effectively respond to the threat of terrorism without abandoning the fundamental freedoms and protections which lie at the heart of our democracy.

This is not an impossible task. The popular misconception that human rights are inflexible, esoteric principles which undermine efforts to protect national security is just that – a misconception.

International human rights law already strikes a balance between security interests and rights considered to be fundamental to the person. 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.

Counter-terrorism legislation in Australia

To appreciate the breadth of Australia’s counter-terrorism response, it is worth providing a brief sketch of the major counter-terrorism legislation.

In the aftermath of the tragic events of September 11, the Government introduced new counter-terrorism legislation, notably the Security Legislation Amendment (Terrorism) Act 2002, which defined a “terrorist act” and created new terrorism offences, including ones that derive from being associated in different ways with an entity that is proscribed as a “terrorist organisation”.

In October 2002, three days after the Bali Bombings claimed the lives of 87 Australians, the Government introduced a second major package of counter-terrorism legislation. The ASIO Amendment Act 2002 gave broad ranging powers to our security apparatus, including the power to obtain questioning warrants and detention warrants for the purpose of obtaining 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;
  • ministerial power to declare prescribed security zones and police powers to stop, search and question persons in relation to terrorist acts; and
  • a new sedition offence.

These powers were enacted in the Anti-Terrorism Act (No.2) 2005.

The expansion of executive power

A persistent feature of counter-terrorism legislation has been the expansion of executive power to make decisions which have the potential to infringe fundamental human rights without corresponding checks and balances.

From a human rights perspective, it is not always the text of the law that is the problem but how the powers which the laws create are exercised in a given case. This is why it is vital that executive decision-making powers are subject to review to check that an exercise of power is proportionate and necessary in the particular circumstances.

To provide a proper and meaningful audit on the exercise of executive power, counter-terrorism legislation needs to recognise not only the importance of judicial review, to check the legal validity of the decision, but the need for merits review. Merits Review is vital so that the person who is the subject of the decision-making power can challenge the factual basis upon which the decision was made.

For example, under the Anti-Terrorism Act (No.2) 2005 the Attorney-General has the power to prescribe a security zone where everyone in the zone is subject to police stop, search, questioning and seizure powers, regardless of whether or not the police officer has reasonable grounds to believe the person may be involved in the commission, or attempted commission, of a terrorist act.

There is no effective mechanism for review, judicial or otherwise, of the Attorney-General’s decision to prescribe a security zone. Members of the public who are caught in this zone will be unable to challenge the validity of the exercise of police powers.[4]

Another example of executive power which is not subject to any meaningful review process is the Attorney-General’s power to proscribe a ‘terrorist organisation’ if satisfied on reasonable grounds that the organization directly or indirectly plans, assists, fosters or advocates the commission of a “terrorist act”.

The sheer breadth of the Attorney’s power creates a risk that, if a decision is made on the wrong facts or the powers are applied too expansively, the decision will violate the right to freedom of expression or association of many quite innocent people who happen to have some connection with the organisation.[5]

I believe that to safeguard against the potential breach of fundamental rights, the decision to proscribe a terrorist organisation, like other exercises of executive power under the counter-terrorism legislation, should be open to independent scrutiny including merits review, and preferably before a court.

Significantly, the Government-appointed Security Legislation Review Committee recently concluded that in balancing human rights and human security, any interference with human rights must be reasonably proportionate to the need to protect the security of Australians both here and overseas.

Some may think the concept of proportionality sounds vague and malleable, incapable of offering anything more than rhetorical comfort. However, International human rights law offers a practical test for proportionality: does the particular limiting measure represent the least restrictive means of achieving the relevant purpose?

Moving forward: A charter of rights?

The problem is that neither our pre-legislative processes nor the scrutiny mechanisms in the counter-terrorism legislation provide any incentive to apply this test of proportionality.

If we are truly committed to creating counter-terrorism legislation which safeguards human security without sacrificing human rights we need to seriously evaluate the effectiveness of our legislative process, and how proposed grants of new power to the executive are scrutinised.

In Canada, the United Kingdom, the United States and New Zealand questions about how to balance human rights and human security have been assessed in the framework of a domestic Bill of Rights. Australia, of course, does not have one, and I have to say that I see no prospect of us getting one like the overseas models, at least for a very long time.

The main obstacle to us doing so seems to be concern about the role of the courts and unelected judges under a statutory charter of rights. I put that debate aside, at least for the moment, to discuss how another aspect of a Charter of Rights, the pre-legislation requirements, might shape the law making processes, and foster a culture where all bills are systematically scrutinised to determine whether they conform to recognised International human rights obligations.

I don’t think anyone can seriously dispute the importance of the scrutiny of proposed legislation by parliamentary committees which presently occurs, but:

  • do these processes adequately integrate human rights principles into the policy and law making process?
  • do we have adequate mechanisms to test the human rights compatibility of counter-terrorism legislation?

These committees are vital mechanisms for public scrutiny. But they are also subject to fundamental limitations; limitations which will potentially be exacerbated by current proposals to reform the Senate Committee process.

The extent to which Committees do or do not consider the human rights implications of proposed legislation is a matter of chance, not a matter of procedure. Crucially, the 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.[6] There is no obligation on the government to listen to or act on Senate Committee reports or security legislation reviews.

In my view, it is no longer acceptable for human rights considerations to be simply a chance incidental in the law making process. What we need now is a debate about how to integrate human rights principles in the daily decision making of the legislature, and to ensure that human rights principles are reflected in powers which legislation gives to the executive and, perhaps most contentiously, the courts or other reviewing tribunals.

Earlier this year the Attorney-General told The Daily Telegraph that instead of campaigning for charters of rights, state premiers could ask for access to the HREOC to determine whether state laws are consistent with Australia’s international obligations. [7]

This proposal may inadvertently give an inflated idea of HREOC’s functions. While HREOC currently has the power to examine and report whether federal laws are consistent with human rights obligations, it would be logistically impossible for HREOC to scrutinise every federal Act with human rights implications, let alone all the State and Territory Acts as well.

Unless we receive an invitation from the Attorney-General, HREOC is unable to examine bills. So far as I know such a request has never been made. Perhaps most importantly, there is no requirement for the Government to act on or respond to recommendations made by HREOC.

Under the ACT Human Rights Act the Minister or MP presenting the Bill is required to present a human rights compatibility statement, and a parliamentary scrutiny committee independently assesses whether the Bill is consistent with human rights. These provisions demand that the law making process pay attention to human rights principles.

Even stronger provisions are contained in the proposed Victorian Charter of Human Rights and Responsibilities Bill which provides that any member of Parliament introducing a Bill must justify why the bill is compatible with human rights or, in the event Parliament decides to pass legislation that is inconsistent with its obligations, clearly explain the nature and extent of the incompatibility.

The Attorney-General of New South Wales, in a recent speech[8] discussing the prospect of a Charter of Rights for New South Wales said that should one be pursued, it would be devoted less to so called lofty principles than to things people take for granted, for example freedom of expression, freedom of association, and the right to vote. Although he did not mention it, I would hope the Attorney also contemplated the rule of law including the central rules of natural justice and fair trial.

Having made that point, the Attorney went on to say:

What we are talking about is not a Bill of Rights, but a document that clearly out lines and preserves principles that the Government should take into account when drawing up laws.

It seems to me that had there been a process which required the presentation of a human rights compatibility statement along with the counter-terrorism bills in 2002, 2003 and 2005, it is likely that a lot of the acrimonious and emotional debate that occurred to bring about improved avenues of review, checks and balances in the final legislation would not have been necessary.

A Melbourne academic, Dr Simon Evans, has suggested that human rights impact statements (modelled on the existing regulatory impact statements which assess the impact of legislative proposals on business) would have the potential to assist Australian legislatures to assess the human rights impacts in the early stages of the policy process.[9]

At a time when talk of a federal Bill of Rights is accompanied by an air of unreality, there is a certain pragmatic appeal in avoiding debates about a judicially enforceable Bill of Rights and focusing on integrating human rights analysis into legislative and executive decision making.

While this proposal has pragmatic appeal, the problem with focusing exclusively on integrating human rights principles in the pre-legislative process is the continuing absence of a systematic mechanism to test the human rights compatibility of existing legislation and the absence of remedies for people who feel that their human rights have been breached. Ideally, the prospect of a court ruling on human rights compatibility would help ensure the legislature takes the human rights implications of Bills seriously.

Nevertheless a Charter, or a Parliamentary Guide to Best Practice could be drawn up so as to leave the courts and judges out of the equation. On the principle that it is better to make a partial gain than none at all, there would be much value in putting in place a process that required attention to fundamental human rights principles during the drafting and passage through parliament of future legislation.

This would provide a statutory framework where the human rights considerations are a crucial aspect of policy formulation. In this vision, human rights principles would be a framework of analysis for good policy and good law, not just a footnote to the law making process.

I leave you with that thought, but before I finish, could I just remind you that HREOC is now calling for nominations for the 2006 Human Rights Medal and Awards.

[1]Michael Ignatieff, New York Times, 5 February 2002.
[2] Kofi Annan, Press Release SG/SM/7382, “Secretary-General Salutes International Workshop on Human Security in Mongolia” (Ulaanbaatar, May 8-10 2000)
[3] Attorney-General Philip Ruddock, “A new framework: Counter-terrorism and the rule of Law”, Address to the Sydney Institute, 20 April 2004
[4] Note, however, that the owner of an item seized by police may apply to a magistrate to request the return of the thing, and, if the magistrate is not satisfied that the thing is likely to be used by the owner or another person in the commission of a terrorist act or serious offence, the magistrate must order the thing to be returned to the owner. See section 3UG Crimes Act 1914 (Cth)
[5] See S Joseph ‘Australian Counter-Terrorism Legislation and the International Human Rights Framework’ 27(2) UNSWLJ (2004) 428, 438.
[6] See further Simon Evans, ‘Improving Human Rights Analysis in the Legislative and Policy Processes’, 29 Melbourne University Law Review (2004) 665
[7] Malcolm Farr, ‘State rights push wrong – Ruddock slams campaign’, The Daily Telegraph, 7 April 2006.
[8] NSW Attorney-General, the Hon. Bob Debus MP, Opening address for the Australian Human Rights Centre Annual Public Lecture, Sydney, 16 May 2006
[9] Simon Evans, ‘Improving Human Rights Analysis in the Legislative and Policy Processes’, 29 Melbourne University Law Review (2004) 665