Beijing Forum on Human Rights
“Development, Security and Human Rights”
Beijing, 21-23 April 2008

Security and Human Rights in Australia:
Australia’s counter-terrorism response

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

Abstract

This paper addresses one of the Forum themes: ‘Security and Human Rights’. Since 11 September 2001 governments around the world have responded to the threat of terrorism with tough measures to protect the lives and security of their communities – to protect their fundamental human rights. New security measures give government authorities unprecedented powers, which can seriously infringe the basic human rights of those against whom the powers are exercised. Yet the argument is heard; “Why worry about the human rights of those who are themselves showing contempt for the lives and rights of others?” This paper contends that under international law the human rights of both groups – the community at large and those who become the subject of counter-terrorism measures – must be protected. Established human rights principles allow for an appropriate balancing of human rights and security to meet this end. Failure to achieve this balance undermines the effectiveness of security measures. Drawing on the Australian experience with counter-terrorism laws, the paper proposes principles that should inform counter-terrorism measures.

Introductory Remarks

I speak as President of the Australian Human Rights and Equal Opportunity Commission which is a Paris Principle ‘A’ accredited National Human Rights Institution. Its legislative function in Australia is to oversee Australia’s domestic compliance with the Human Rights Conventions which Australia has ratified, and with international human rights norms generally.

In the course of doing so, the Commission fosters human rights education, public debate on human rights issues, and offers advice to the Government about proposed laws. It has done so in relation to counter-terrorism laws introduced into Australia in the wake of 9/11, the Bali bombings and the London July 2005 bombings.

Drawing on the Australian experience my paper addresses how apparently conflicting human rights should be addressed in counter-terrorism laws, and suggests a principled way of doing so consistent with the human rights of all concerned – the community under threat and the terrorists.

Central to the themes of many papers prepared for this Conference is the view that to effectively address terrorism, governments, especially in developing countries, must address rights to development, sustenance and education to create communities in which all groups can enjoy their economic, social and cultural rights as well as their civil and political rights.

This is thought necessary to address causes of radicalism which prompt terrorists to act as they do to advance their own political and religious ideologies.

The argument in my paper is that unless counter-terrorism laws respect the civil and political rights of those suspected of, and charged with terrorist offences, the laws themselves will add another serious layer of grievances so that the laws, instead of being an effective control mechanism, will in fact fuel more radical behaviour.

In short, the laws themselves must be in accordance with human rights norms and respect the human rights of everyone.

Ladies and gentlemen,

There can be no argument that terrorism is a gross violation of fundamental human rights. It violates not only the right to life of those in the community that is targeted, but the very way of life of the community itself. Governments have the right, indeed the duty, to introduce measures to protect their communities that can deal with the worst-case scenario.1

In the extraordinary circumstances of a terrorist attack, protecting national security may involve restricting rights. But this can be done consistently with international human rights law. Human rights are not inflexible, esoteric principles that hamstring government action to respond to threats to public order and security. International human rights law was forged in the wake of devastating periods of global conflict and clearly recognises the necessity of balancing the protection of individual rights against the protection of national security.

However, this balancing must occur within the human rights framework. International law allows for derogation from a range of individual rights where the gravity of the threat means that the government has no other choice than to suspend or restrict certain rights of individuals. This latitude should be sufficient to accommodate effective counter-terrorism measures. Article 4 of the International Covenant on Civil and Political Rights (the ICCPR)2 makes specific provision for derogation in times of public emergency which threatens the life of the nation.3 Moreover, rights to freedom of expression, to freedom of assembly and to freedom of association4 are expressly subject to limitation for the protection of national security and public order.

The critical condition, however, is that the derogation of an individual’s human rights must be reasonable, necessary and proportionate5 to the threat at hand. International law provides a workable test to determine proportionality:  “Is the measure taken the least restrictive means of achieving the relevant purpose?” However, it is important that the proportionality test not turn into a broader “either or” weighing up of security on the one hand and human rights on the other.

The need to incorporate human rights principles into counter-terrorism measures has been recognised by the United Nations Security Council in Resolution 1373 which requires governments to take ‘such action as is necessary to prevent and prosecute terrorism’ – but, only if such action complies with international human rights, humanitarian and refugee law.

Beyond the letter of international law, there are strong reasons why security measures should respect the principle of proportionality. Because terrorism is ideologically and politically motivated. An essential strategy in countering the extremism that breeds terrorism is to win ‘the contest of ideas’ by rigorously defending the basic human rights and freedoms which form ‘the bedrock of dignity and democracy that make our societies worth protecting’.6

Winning the contest of ideas becomes infinitely more difficult if security measures taken by a State undermine basic human rights standards.Asthe former United Nations Secretary General Kofi Annan observed:

…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.7

The revelations about the treatment of detainees in Abu Grabe and Guantanamo Bay, and about the use of torture techniques such as ‘water boarding’ provide fertile soil for the recruitment of individuals to movements that hold out the promise of social change and advocate the  use of  terrorist tactics to achieve it.

For this reason, strict adherence to basic human rights standards should be seen not just as a matter of principle, but as a crucial strategy for governments in the fight against terrorism. In the same vein, the promotion of core community values of tolerance, inclusiveness and non-discrimination are important in countering extremism and radicalisation in minority groups in a community.

Nevertheless, protecting the security and safety of the broader community, while preserving the human rights of those who become the subject of security measures, remains one of the most significant challenges in the post-September 11 climate.

Australia’s Counter-Terrorism Response

I now look briefly at human rights aspects of Australia’s experience with counter-terrorism measures. Prior to September 11 2001, there was no specific criminal offence of terrorism in Australia in federal legislation. Since then, the Federal Government has passed over 40 new pieces of legislation, creating a complex counter-terrorism framework. Counter-terrorism legislation in Australia has extended the law in three main areas:

  1. The classification of terrorism, terrorist entities and organisations
  2. Investigative and intelligence gathering powers
  3. Powers of detention and control

Proposed Bills in each of these areas attracted substantial public criticism, on the grounds that the circumstances which enlivened the new measures were too vaguely defined. There were also concerns about the inadequacy of ‘check and balance’ mechanisms in the Bills to ensure that the exercise of the new powers in a particular case was reasonable, proportionate and respectful of human rights. In justifying the laws, the government assured the community that the new measures would be applied carefully and no further than necessary. Assurances of this kind never satisfy everyone, least of all those who already distrust the system. The very groups who need assurance do not see it in the letter of the laws. Moreover, even with goodwill it is common experience that law enforcement agencies make mistakes. The wrong people are sometimes identified or false evidence is unwittingly relied on.

Mechanisms to test the propriety of executive action are a necessary safeguard of human rights. While debate during the parliamentary process and open discussion in the media led to many modifications of the proposed Bills, the potential for unjustified infringement of human rights remains under the laws in their final form.

The classification of terrorism, terrorist entities and organisations

New terrorism offences were introduced in 2002 and are found in the Commonwealth Criminal Code Act. These offences criminalise a wide range of conduct; many offences falling short of the actual commission of a terrorist act, for example possessing things connected with a terrorist act, or making documents likely to facilitate terrorist acts. The definition of a terrorist act also introduced the concept of motivation – the act must be done with the intention of advancing a political, religious or ideological cause. Proof of motivation, not just intention to commit the act, is not a usual requirement in the criminal law and poses novel issues of proof.

Many of the new offences derive from ‘associating’ in various ways with an entity that is ‘proscribed’ as a ‘terrorist organisation’. The notion of ‘associating’ is a very vague one. The power to ‘proscribe’ an entity is vested in the Attorney General, who must be satisfied on reasonable grounds that the organisation is engaged in activities that foster the doing of a terrorist act, or ‘advocates the doing of a terrorist act’. The word ‘advocates’ is defined in vague terms which have the potential to catch entirely innocent activity.8  The law fails to provide a mechanism for reviewing the Attorney-General’s decision. Even where a person is charged with an association offence there is no way of challenging the Attorney-General’s decision that the organisation should be proscribed.

Investigative and intelligence gathering powers

The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 gave broad ranging powers to Australia’s security organisations, 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.

The Bill originally proposed allowed adults, even children above the age of 10, to be detained, strip-searched and held incommunicado for rolling two-day periods, which could be extended indefinitely. The proposed Bill denied a detained person the opportunity to inform family members or even a lawyer of their detention. The Bill provided for people to be held, not on the grounds that they were suspected of being engaged in terrorism, but because they may ‘substantially assist in the collection of intelligence that is important in relation to a terrorist offence’.

This legislation was the subject of three separate debates in Parliament, and extensive review by a select committee of Parliament. There was protest through the media by many persons concerned with human rights and civil liberties, who argued that the proposals were out of proportion with the risks they were intended to redress, and were a gross over-reaction.

In the result, the Bill was substantially amended before it was ultimately passed and many safeguards were introduced. In its final form, warrants require the prior consent of both the Attorney-General and an ‘issuing authority’, usually a retired Federal Court judge. They must be satisfied that there are reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important in relation to a terrorist offence. Under a detention warrant a person can be detained for up to seven days with only limited access to other people. A change to the original Bill now permits contact with a lawyer, but subject to visual monitoring. All questioning take place before a former judge who has close control over the treatment of the subject to ensure that the person is treated fairly and with humanity. No person under 16 can be the subject of a warrant.

Powers of detention and control

New powers were enacted under the Counter-terrorism Act (No.2) 2005, including the power to issue control orders and preventative detention orders. This Act was hurried through Parliament following the London bombings in July 2005.

Control orders impose a variety of prohibitions and restrictions on the subject. They may prohibit or restrict a person from being at a specific area or place, leaving Australia, communicating or associating with specified individuals, or accessing or using certain forms of technology or communication; or require them to wear a tracking device, report to a specified person, or remain at specified premises at particular times. A control order requires the approval of a court which must be satisfied, on the balance of probabilities, that the order would substantially assist in preventing a terrorist act or that the subject of the order has provided training to or received training from a proscribed terrorist organisation.

Preventative detention orders allow a person to be detained to prevent an imminent terrorist attack or to preserve evidence about a recent terrorist attack. A senior member of the Federal Police may issue an initial order, which would keep a person in custody for a period of 24 hours. Following that, an issuing authority9 may continue the order for up to an additional 24 hours. Under complementary State legislation a person may then be held for up to an additional 12 days – in total, up to 14 days.10

The original Bill envisaged that orders of either kind would be made ex parte, and that the subject would not be provided with reasons why the orders were made or given access to the evidence relied on. The Bill provided no realistic mechanism to challenge an order. Again, after public debate in Parliament and the media, the Bill was modified to include mechanisms to gain access to evidence and reasons why the orders were made (except for any parts of the evidence which the Attorney-General certifies as security sensitive).  However, the available processes cannot be accessed quickly, and full review of the merits is at best difficult. Significantly, at no point in the processes is an issuing or reviewing authority required to consider whether the conditions of an order are the least restrictive necessary.

Conclusions from the Australian experience

The Australian experience shows, I think, that there is no need for governments to fear public debate about proposed new laws. Public discussion about the counter-terrorism Bills identified many latent problems and also identified solutions that have substantially addressed many of the human rights issues without rendering the new measures any less effective in giving protection.

The Australian Human Rights and Equal Opportunity Commission (HREOC) has had a significant presence in the public discussion about the human rights implications of Australia’s counter-terrorism laws. Through its submissions to the Australian Government and Federal Parliament, HREOC has developed the following key principles of a ‘human rights approach’ to counter-terrorism measures.

1. Do not violate non-derogable human rights

The 1st principle is that governments must not violate non-derogable human rights. 

International law, for example article 4 of the ICCPR, identifies some rights – the right to life, the right to be free from torture or cruel, inhuman and degrading treatment, freedom of thought, and protection against retrospective criminal charges – which cannot be derogated from in any circumstances. Legislation which violates these non-derogable rights, such as shoot to kill powers, or laws which enable confessions obtained by torture or cruel, inhuman or degrading treatment to be admitted into evidence, should not even be proposed. 

States must remember that the prohibition of racial discrimination is a pre-emptory and non-derogable norm of international law – particularly in light of national and international reports warning of increasing racism and intolerance against Arab and Muslim communities.11
States should also recognise that while the right to a fair trial is not listed as a non-derogable right in article 4(2) of the ICCPR,12 the United Nations Human Rights Committee has stated that the fundamental requirements of fair trial must not be abrogated in any circumstances.13  The importance of the right to a fair trial in the context of counter-terrorism proceedings was reinforced in Hamden v Rumsfeld where the 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’.14

2. Derogable rights should only be limited in accordance with human rights law

The 2nd principle is that derogable rights should only be limited in accordance with human rights law. 

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', subject to following the notification procedure specified in article 4(3).15

The United Nations Human Rights Committee has recognised that terrorism may, under very specific conditions, create a state of emergency, and in 2004, the United Kingdom’s House of Lords also accepted that the threat of terrorism may constitute a ‘public emergency’.16

There are other rights in the ICCPR that contain within them their own limitations permitting derogation,17 when that limitation is for a legitimate and defined purpose.  However, the restrictions must not usurp the rules. They must meet principle of ‘proportionality’.

3. Ensure that persons who are subject to counter-terrorism laws can challenge the validity of decisions that impact on their rights

The 3rd principle is to ensure that persons who are subject to count-terrorism laws can challenge the validity of decisions which impact on their rights.

Counter-terrorism laws in Australia have led to an expansion of executive power to make decisions that may infringe human rights. Judicial review, to check if the decision has been made legally, and independent merits review, to check if the decision was made on the correct facts, are therefore both essential. It would also be preferable if the authorisation for the exercise of counter-terrorism powers be approved in advance by a judicial officer, unless the urgency of the situation dictates to the contrary. Without these mechanisms there are no safeguards to protect individuals from the injustice that would result from the abuse, misuse, or erroneous application of the powers.
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.

4. Respect the role of an independent judiciary

The 4th principle is to respect the role of an independent judiciary in overseeing the application of counter-terrorism laws.

While this principle may seem straightforward, some counter-terrorism laws unduly fetter the discretion of judges to protect the features of a fair trial, including the right of a defendant to know exactly the case against him or her. This is a trend which can subtly undermine the proper functions of an independent judiciary.

This problem is illustrated in Australia by 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. Although the court is required to consider whether the order would have ‘a substantial adverse effect’ on the defendant’s right to a fair hearing, 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. 

The United Nations High Commissioner for Human Rights 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’.18  While possible prejudice to national security ought to be given great weight, courts should retain a flexible discretion to consider the circumstances of each particular case.

5. Establish regular, independent review of counter-terrorism laws

The 5th principle is to establish regular, independent review of the operation of counter-terrorism laws.

Often counter-terrorism legislation is rushed through the Parliament as a response to a recent terrorist event without adequate consultation or chance for informed debate.

Regular, independent review of counter-terrorism legislation is vital for this reason, and because of:

  • the potential of some counter-terrorism laws to disproportionately infringe fundamental rights, such as the right to liberty and the right to a fair trial;
  • the risk that review mechanisms in relation to the exercise of counter-terrorism measures will prove to be inadequate; 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.

It is important that counter-terrorism reviews consider how the counter-terrorism framework is working as a whole – not just focusing on one particular counter-terrorism legal law. This is because a number of counter-terrorism powers will frequently interact to impact on people’s rights.

Establishing a permanent independent review mechanism is also preferable to ad hoc committees, because it allows for expertise to be developed 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.

6. Introduce stronger human rights protections

The 6th and overarching principle is that governments should give domestic force to international human rights law by introducing explicit statutory protections for human rights. This can be achieved by through a statutory Charter of Human Rights, like the United Human Rights Act 1998.  Such a Charter could give practical effect to the five principles set out above.

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 laid down in the Act for ensuring compatibility with human rights had 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 Human RightsParliament can no longer overlook the human rights impact of new laws and policies. This is because under a Charter of Rights:

  • the Minister 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.

But to be serious about providing legal checks against the temptation for executive overreach, a Charter of Human Rights needs 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

Giving the courts the power to ask these questions, by adopting a Charter of Human Rights, will ensure the human rights compatibility of counter-terrorism measures.

Conclusion

Strong counter-terrorism measures are necessary to prevent the gross violations of human rights that acts of terrorism inflict.  However, laws that undermine rights and freedoms foster dissent and provide ammunition for the terrorist cause. Strict adherence to basic human rights standards is not, therefore, a matter of principle, but a crucial strategy for governments in the fight against terrorism.

A human rights approach to counter-terrorism laws provides a conceptual framework which is normatively based on international human rights standards and which is practically directed to promoting and protecting human rights for all. Such an approach can be used by lawmakers to achieve national security without disproportionately limiting the very rights and liberties that are fundamental for maintaining the rule of law, and ultimately, security. 


Footnotes

[1] The United Nations Security Council Resolution 1373 requires 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)

[2] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

[3] Non-derogable human rights recognised in article 4 of the ICCPR are referred to later in this paper

[4] Articles 19, 21 and 22 of the ICCPR

[5] 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 United Nations Human Rights Committee, General Comment No. 29 - States of Emergency (Article 4), UN Doc CCPR/C/21/Rev.1/Add.11, at [4]

[6] Professor David Feldman, The roles of Parliament in Protecting Human Rights: A view from the UK, address at the Human Rights and Legislatures Conference, Melbourne University (20-22 July 2006)

[7] Kofi Annan, United Nations Secretary General, Address to the closing plenary of the International Summit on Democracy, Terrorism and Security, Madrid, Spain (10 March 2005). Press Release, UN Doc SG/SM/9757

[8] The definition includes an organisation that “directly praises the doing of a terrorist act in circumstances where there is a risk that such praise might have the effect of leading a person (regardless of his or her age or any mental impairment…that the person might suffer) to engage in a terrorist act”: Commonwealth Criminal Code  s 102.1(1A)

[9] Who must be a judge, federal magistrate, ex-judge who served in a superior court for 5 years, or the President or Deputy President of the Administrative Appeals Tribunal: Commonwealth Criminal Code s105.2

[10] See for example, Terrorism (Police Powers) Act 2002 (NSW) s 26K

[11] 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, at [8]

[12] 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.  

[13] United Nations Human Rights Committee, General Comment No. 29: States of Emergency (Article 4), at [16].

[14] Hamdan v Rumsfeld, 126 S.Ct 2749 (2006)

[15] 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.

[16] A (FC) and others (FC) v Secretary of State for the Home Department [2004] UKHL 56

[17] For example, articles 19, 21 and 22 of the ICCPR

[18] 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.

[19] United Kingdom Department for Constitutional Affairs, Review of the Implementation of the Human Rights Act (2006), at [4]. 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.

[20] RT Hon Lord Falconer of Thoroton, Lord Chancellor and Secretary of State for Constitutional Affairs, The role of judges in a modern democracy, Magna Carta Lecture, Sydney, (13 September 2006)

Address

Australia