Seventh International Conference for National Human Rights Institutions
Seoul, Korea, 14 - 17 September 2004
"Conflict and Countering Terrorism: Civil and Political Rights and the Rule of Law"
The Hon John von Doussa, President
Human Rights and Equal Opportunity Commission, Australia
Torture and various forms of terrorism have been practiced throughout history, though never on the scale we are now confronted with. The first visual records of police interrogation were discovered in a four thousand year old tomb in ancient Egypt. Since the pharaohs there have been many refinements in methods of inducing physical pain and gathering intelligence, most notably during the Spanish Inquisition, but more recently in the modern totalitarian state. Today, in the name of the so-called war on terror, ill-treatment and torture are again being used more or less openly by some countries, including the US. These practices surprisingly have the approval of a number of distinguished professors and opinion-makers who argue that to defeat these new evils, we may have to compromise our standards on occasion.(1)
Although extraordinary times may, at first blush, call for extraordinary responses, arguably the means of addressing these new challenges is already in our possession.
What is needed is a renewed commitment to uphold and give effect to human rights laws. As the late High Commissioner for Human Rights, Mr Sergio Vieira de Mello advised,
"the best - the only - strategy to isolate and defeat terrorism is by respecting human rights, fostering social justice, enhancing democracy and upholding the primacy of the rule of law."(2)
A global terrorist threat does not present a valid reason to step back from the aspirations set out in instruments such as the Universal Declaration on Human Rights. Rather it is precisely this threat that should inspire us to achieve a world where each person can live their life in peace and with dignity.
The challenge that confronts world powers is that "[a] coercive approach to the establishment of human rights and democracy, particularly if promoted by Western might and wealth, is almost certain to backfire".(3)
The experience of some national human rights institutions may be useful in demonstrating how a human rights culture can be fostered, and a benevolent but potent force for positive change exerted.
As required by the annotated agenda for this session, this paper discusses experience at the national level in Australia concerning the impact of counter-terrorism measures on the enjoyment of civil and political rights. The paper identifies potential strategies for national human rights institutions in States not experiencing actual conflict to be an effective advocate for human rights. It acknowledges that in a conflict situation, strategies available to national institutions will necessarily be different, and curtailed.
Australia's legal structure
Australia is fortunate to be amongst the States that were largely unscathed by a terrorist attack prior to 11 September 2001. Only one such attack had occurred on Australian soil, when a bomb exploded in front of the Hilton Hotel in Sydney on 13 February 1978 killing three people and seriously injuring several others. The identities and motivations of the persons responsible for that attack remain unclear.
More recently, Australian citizens have been killed in the attacks on the twin towers in New York, the bombing of the Sari Night Club in Bali and the bombings in three housing compounds in Riyadh, Saudi Arabia last year.
Australia, like other nations, has introduced counter-terrorism measures in response to the emergence of a global terrorism threat. Given the unprecedented nature of this threat, no country can afford to be complacent and continue to function on a 'business as usual' basis. As Edmund Bourke advised, "[a] state without the means of some change is without the means of its conservation."
To understand the impact of Australia's counter-terrorism measures it is necessary to briefly sketch the Australian position as it was before that date.
In Australia, the Westminster system of democratic government has functioned under a written constitution since 1901. The Federal and State Parliaments have enacted comprehensive laws which govern virtually every aspect of private and commercial life. The legislation operates against the backdrop of the English common law and an efficient multi-tiered independent judiciary.
Legislation and adherence to the English common law safeguards ensured that recognised international human rights were generally observed by the legislators and enforced by the Courts. For example, criminal law procedures complied comprehensively with the broad requirements of ICCPR, particularly Articles 9 to 16. Recognised safeguards included:
- freedom from arrest without warrant;
- a prompt appearance before a Court after arrest;
- a right to apply for bail;
- recognition of the accused's right to silence;
- the presumption of innocence;
- prohibition on the admission and use of evidence obtained by torture or illegal conduct;
- prohibitions against unauthorised telephone taps or interference with mail;
- a public trial;
- a trial by jury in serious cases; and
- right of appeal.
As there is no constitutional guarantee in a Bill of Rights or otherwise of fundamental human rights and freedoms, the legislatures in Australia can override recognised human rights - subject of course to an electoral backlash if the electorate does not support the actions of the parliamentarians. In this respect parliamentary Bills and legislation that potentially empower interference with fundamental human rights attract vigorous debate in the press and electronic media.
The Australian Human Rights and Equal Opportunity Commission (hereafter, the Commission) has consistently taken the view that after the terrorist events or 2001 and 2002, the Australian government had a duty to take appropriate steps to strengthen our legislative protections against international terrorism, and to authorise the courts and the other levels of government to respond effectively should more terrorist acts occur.
The central challenge for the Parliament is how these protections can be achieved in a manner that strikes a balance between the protection of the community at large, and the rights of suspects. It is recognised that the freedom and safety of general members of the community are fundamental human rights that weigh heavily in the balance. But on the other hand, to allow arbitrary detention and draconian measures against possible terrorist suspects would undermine the rule of law and the very pillars of democratic freedom which anti-terrorism measures are intended to uphold.
It is also recognised that if suspects are convicted of terrorist related charges in unfair court proceedings, or as the result of false confessions under duress, or worse still, if suspects are simply detained indefinitely without trial, democracy will not be served and the real terrorists may pass undetected.
International standards for human rights protections in the context of the war on terror
Human rights law acknowledges that from time to time, States must address serious and genuine security concerns, including terrorism. Principal in this regard is the ICCPR, which provides clear guidance for States as to how they can strike a fair balance between legitimate national security concerns and the protection of fundamental freedoms.
The drafters of the ICCPR envisaged that there would be occasions when human rights as set out in the Covenant would be justifiably infringed by States in times of public emergency. A procedure for the derogation from such rights is prescribed in article 4 of the ICCPR which provides for derogation from human rights protections 'in times of public emergency which threatens the life of the nation'.
However, that power of derogation is carefully circumscribed to avoid the arbitrary disregard for human rights. For example, any measures taken by State must be 'strictly required by the exigencies of the situation' and they should only remain in place whilst there is a publicly-declared state of emergency.(4) A number of additional safeguards have been put forward by the United Nations Human Rights Committee (and the European Court of Human Rights) to minimise the impact of incursions on human rights by public security issues.(5)
The drafters of the ICCPR were also careful to spell out which human rights are not subject to suspension under any circumstances.(6) The list of non-derogable rights includes:
- the right to life (article 6);
- freedom of thought, conscience and religion (article 18);
- freedom from torture or cruel, inhuman or degrading punishment or treatment (article 7);
- the right to recognition everywhere as a person before the law (article 16); and
- the principles of precision and non-retroactivity of criminal law (article 15).
Australia's counter-terrorism legislation
Australia has not sought to invoke article 4 of the ICCPR and under international law may not at present derogate from any of its obligations under the ICCPR in any new measures which are introduced to protect national security.
Yet the post 11 September counter-terrorism measures introduced by the Australian Government have the potential to significantly impinge on recognised human rights standards, and in some cases breach human rights law. It is therefore not surprising that the Commission, human rights NGOs, legal academics and other high profile commentators in Australia have strenuously opposed aspects of the Bills in the national media and other public fora.
The fact that counter-terrorism bills are now routinely being sent to federal parliamentary committees for review and exposure to public consultations, demonstrates how keenly aware all political parties are of the groundswell of concern in the Australian community. In some cases, the Government's own members (who are in the majority on the legislative committees) have condemned the proposed legislation and recommended substantive amendments to achieve a better balance between human rights measures and national security objectives.(7)
Despite this opposition, Australia like most countries, now has a raft of counter-terrorism legislation and policies in place. The Australian Parliament and its committees of inquiry continue to consider further additions to this body of law, and as a consequence, the Commission remains engaged in the process of highlighting both Australia's obligations under human rights law and the shortcomings of legislative proposals in this regard.
Two pieces of counter-terrorism legislation that are now law in Australia demonstrate that a national institution can positively influence the legislative process to promote and protect human rights.
Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2002
Referred to as 'the ASIO Bill' before it was enacted, this is probably the most draconian Bill an Australia government has ever conceived of. It surpasses the attempts of former Australian Prime Minister Robert Menzies to ban the Australian Communist Party in 1950.(8) Legal commentators have compared the ASIO Bill to counter-terrorism legislation in the UK, the US and Canada and found that it supersedes the draconian measures adopted in all of these jurisdictions. As one legal expert summed it up, "[o]nly Australia has sought to legislate to authorise the detention in secret of non-suspects".(9)
In its original form, the ASIO Bill allowed adults and even children (above the age of 10) to be detained and strip searched, and to be held by the Australian Security Intelligence Organisation (ASIO) for rolling two day periods that could be extended indefinitely.(10) The detainees could be denied access to people outside ASIO, and could be denied the opportunity to inform family members, their employer or even a lawyer of their detention.(11)
Further, the Bill provided that Australians could be held, not on the grounds that authorities suspected they had engaged in terrorism or were likely to do so, but because they may 'substantially assist in the collection of intelligence that is important in relation to a terrorism offence'.(12) A detainee's failure to answer a question posed by ASIO could result in a five year gaol term.(13) Not surprisingly, this latter provision raised serious concerns amongst journalists and lawyers who might have professional and ethical grounds for wanting to exercise their right to silence to protect their sources or clients respectively.
The Commission made a submission to one of the two parliamentary inquiries that reviewed the bill, which collectively received almost 600 submissions.(14) We also engaged in a public awareness raising campaign, issuing a number of media statements to point out where we believed the Bill would breach human rights standards.
In response to strong public criticism and two damning parliamentary committee reports, the Government was forced to substantially amend the Bill. Australians had sent the government a very clear message that they were not prepared to compromise key legal rights and erode civil liberties.
The Bill was ultimately passed in June 2003 after an exhaustive debate in the Australian Senate. It is now subject to a three year sunset clause and can only apply to children over the age of 16 years. Additional improvements include that:
- Detainees are afforded immediate access to a lawyer of their choosing, and can only be questioned by ASIO for a total of 24 hours over a one week period. They must then be released, but can be questioned again should a new warrant be justified by fresh information; (15)
- A person can only be held and questioned when ordered by a retired judge, and the questioning itself must occur before a retired judge. The questioning must be videotaped and the whole process monitored by the Inspector-General of Intelligence and Security, who is effectively the Ombudsman for ASIO.(16) These additional protections in the hands of independent people blunt some of the worst excesses of the original Bill.
However, elements of the ASIO Amendment Act which remain of concern to the Commission and which we will continue to monitor, include the following:
- It is sufficient grounds for the Minister to approve a warrant for questioning if he or she is satisfied that 'there are reasonable grounds for believing that [questioning] will substantially assist the collection of intelligence that is important in relation to a terrorism offence';(17) and
- When questioned, a detainee must give the information or records sought (if they have them) or face the penalty of five year's imprisonment.(18)
Anti-Terrorism Act (No.2) 2004
Prior to its recent enactment, this legislation was also the subject of a Senate Committee inquiry,(19) and a submission by the Commission elaborating on our concerns.(20) The Commission's analysis of the shortcomings of the Bill contained in our submission was quoted at length throughout the Committee's report, and the Committee adopted many of our recommendations. The Senate ultimately enacted four amendments that were proposed by the Senate Committee.
Despite the fact that some of the potential breaches of human rights standards originally contained in the Bill have been removed, a number of provisions remain of concern.
The Act amends the Criminal Code Act 1995 Cth making it an offence to intentionally associate with a person who is a member, or who promotes or directs the activities, of a listed terrorist organisation in circumstances where the association provides support to the organisation. The person must know that the organisation is a terrorist organisation and must intend that their support 'assists' the organisation to expand or to continue to exist.(21) Both the Commission and the Senate Committee recommended that the term 'assist' was unnecessarily wide-ranging in its effect and should be defined to identify the nature and extent of the risk that the offence is intended to address. The Commission pointed to the example of the Patriot Act 2001 (USA), which lists specific types of unlawful behaviour such as provision to a terrorist organisation of financial services, weapons, false documentation or personnel.(22)
Whilst the Australian legislation contains some exemptions, the Commission's concerns in relation to the lack of proportionality remain. There are not adequate carve outs for lawyers, journalists and family members, and this may have adverse implications for the right to freedom of association and freedom of expression in Australia. We will continue to monitor the operation of the legislation in these regards.
Strategies for national institutions in non-conflict situations to promote and protect human rights
As I have indicated, the Australian Commission has been very active in exercising our statutory function to promote awareness amongst the Australian public of the human rights issues arising from counter-terrorism measures. We have sought to ensure these concerns are conveyed to legislators through the parliamentary committee process and public addresses, thereby giving effect to another of our statutory functions, to review existing and proposed legislation for any inconsistency with human rights standards.
Another approach we have taken is to publicly report on concerns raised by members of minority groups in the Australian community who are (or who perceive themselves to be) most affected by the wider community's response to threats of terrorism, and to suggest possible solutions. One example of our work in this regard is the recently-completed national consultations that the Commission convened with Arab and Muslim Australians, which we called the Isma Project.(23)
The very clear message from these consultations was twofold: firstly stronger leadership at all levels of government to denounce prejudice and discrimination on the basis of race or religion, and secondly, the delivery of more education initiatives to foster greater understanding and improved community relationships between minority groups and the broader Australian community.
To assist us in all of our efforts to protect and promote human rights in Australia, the Commission is very fortunate to have long history of a free and questioning media and a strong, vibrant civil society. When it comes to challenging and stridently criticising our government, the Commission is by no means a lone voice. But we are set apart from many of the other voices by our independence.
All national human rights institutions established under the Paris Principles(24) are meant to be afforded an important degree of independence from government. They are in the privileged position of being able to provide independent feedback and advice to ensure that the government's laws, policies and practices reflect accepted human rights standards.
It is to be expected that there will be times when a national institution will be required to be critical of government laws and policies, and this is particularly the case in the context of the so-called 'war on terror'. As a consequence, it is inevitable that political tensions will arise when a national institution is working effectively. However, in the interests of promoting and protecting human rights, it is important that any critical findings of the national institution are accepted by the government in a constructive manner and used as the basis for reappraisal and where necessary, legal or policy reforms.
The challenge for national institutions is to develop a relationship with the State that is based on mutual respect for each other's roles and functions. At the same time, national institutions must establish themselves in the eyes of the broader community as independent, credible and objective organisations so that their criticisms cannot be dismissed by the State or others as uninformed or biased. Meeting these challenges is an imperative if national institutions are to sustain an ongoing dialogue and constructive interaction with the State and the broader community.
The experience of the Australian Commission is indicative of the valuable watchdog/awareness raising role that national institutions can play in other jurisdictions.
Obviously the scope for intervention by national institutions to protect and promote human rights will differ according to the functions they are afforded under their enabling legal instrument. For example, the Australian Commission is explicitly prevented under our legislation from 'inquiring into an act or practice of an intelligence agency', or investigating a complaint concerning such an agency.(25) This is despite the fact that these agencies are the principal actors in counter-terrorism activities in Australia, and that intelligence agencies in many countries, including Australia, are coming under increasing domestic pressure to be more accountable for the advice that they provide governments.
The Australian experience suggests the following strategies may be of relevance to other national institutions to achieve the appropriate balance between the human rights of the community on the one hand, and those of terrorist suspects on the other.
a) A monitoring role
Human rights institutions, along with NGO's must ensure that proposed government action is monitored and evaluated. Monitoring must be comprehensive, and ensure that media reports and statements by government officials as well as formal ministerial statements and Bills are covered.
In Australia that is not difficult at the parliamentary level, as Bills become public upon their introduction to Parliament. However, monitoring of administrative action is more difficult. Unless apprehended suspects have the ability to contact family, friends and lawyers, and unless there is a statutory requirement to present them before a court within a short time of arrest, the apprehension of suspects may remain unknown. New legislative measures, whatever else they do, should ensure these rights are preserved, and to the extent that they are not, national institutions and others must address strategies to gather information about the administrative enforcement of the laws as it takes place.
The development of strategies to monitor the enforcement and administration of anti terrorism laws in Australia is still in its infancy, but as steps are taken under the recent anti-terrorism laws against individuals, the pressure to develop sophisticated mechanisms of information gathering will increase.
As new legislative or other proposed measures come to light, national institutions and other independent parties must analyse the contents of the measures and the human rights implications of their enforcement. Measures inconsistent with proper recognition of human rights should be identified in media statements, through submissions to appropriate players in the parliamentary process, and in academic journals and similar publications.
National institutions have human rights and legal expertise to identify inconsistencies with international instruments and principles of international human rights law. That expertise is invaluable in public debate because it provides the community access to informed, independent and reliable information. They are then in a better position to reach their own conclusions about the actions of the executive, the legislature, the judiciary, the police and armed forces and so on.
b) An educative role
The ability of national institutions to gather experience through other national institutions in other countries equip them to identify potential human rights breaches flowing from proposed measures which the general public might not recognise. This expertise should equip national institutions to undertake educative programs through the media, their websites and with civil society that others in the community cannot undertake.
Educative programs must, however, be balanced and pay due regard to the risk to the community, as well as to suspects. Unbalanced debate is likely to be counter-productive.
Strategies for national institutions in conflict situations
Strategies of this kind assume that a State is not under immediate attack. In situations of actual conflict, the opportunity for rational debate may not exist. In a conflict situation avenues for dissemination of information and public debate are likely to be cut-off, and the daily activities of national institutions and civil society frozen. Australia has no experience in a situation of actual internal conflict.
For strategies in conflict situations we need to look to the experience of our national institution colleagues in countries which have experienced conflict.
In conflict situations the personal safety of human rights workers is likely to be under threat, and personal safety risks of that kind of necessity curtail what can be done. Appropriate responses that provide guidance include the brave and admirable efforts of the National Human Rights Commission of Nepal to broker the observance of human rights by both sides of the conflict, and the Fiji Human Rights Commission in recording events as they occurred during the periods of political instability.
Contemporaneous records of events are of enormous importance after the conflict subsides, when it becomes necessary in criminal proceedings or otherwise to determine what happened. The gathering of information is also valuable to enable lost people to be traced, by humanitarian agencies such as UNHCR and the International Committee of the Red Cross.
External threats - whether real or imagined - have the potential to compromise the rights of people within a nation under the guise of protecting national sovereignty. It is precisely at these times - when a nation expresses a sense of fear and vulnerability - that it needs to strengthen and protect its human rights mechanisms.
We need to be mindful of the fact that human rights laws are among the foundation stones of our functioning democracy, and if we seek to justify the sacrifice of particular rights in an attempt to safeguard our society, we risk foregoing the very rights that are essential to the maintenance of the rule of law, and ultimately the very sense of security we so value.
And it is at these times that a robust and independent national human rights institution is even more crucial in promoting and protecting human rights.
Each national human rights institution has a responsibility to vigorously defend human rights standards before the State and its governing institutions. It also has a responsibility to develop a culture of tolerance and understanding - a human rights culture - which is critical to the development of a cohesive national community and indeed an international community.
In so doing, national institutions can help bridge the divide of differences and become engaged in creating a society where the rhetoric is matched by the reality of its protection of human rights.
- In the aftermath of 11 September 2001, US legal scholar Alan Dershowitz argued in favour of legalised torture as a counter-terror measure. Refer to Richard Falk, 'Think Again: Human Rights', Foreign Policy, March-April 2004, page 1 of 6, www.foreignpolicy.com
- As quoted by The Acting High Commissioner for Human Rights, Mr Bertrand Ramcharan, The Protection of International Human Rights in Counter-Terrorism Efforts, paper delivered at the Eighth Annual Meeting of the Asia Pacific Forum of National Human Rights Institutions, 16-18 February 2004, Kathmandu, Nepal, p.1.
- Richard Falk, ibid, p.6 of 6.
- In order for States to derogate from their obligations under article 4 of the ICCPR in times of public emergency, article 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.
- The Human Rights Committee has developed a list of elements that, in addition to the rights specified in article 4(2), cannot be subject to lawful derogation (Human Rights Committee, General Comment No. 29: States of Emergency (Article 4), 31 August 2001).
- Article 4(2) of the ICCPR.
- See for example Senate Legal and Constitutional Legislative Committee Report, Inquiry into the Provisions of the National Security Information (Criminal Proceedings) Bill 2004 and the National Security Information (Criminal Proceedings) (Consequential Amendments) Bill 2004, tabled 19 August 2004; available at http://www.aph.gov.au/senate/committee/legcon_ctte/index.htm.
- Prime Minister Menzies introduced the Communist Party Dissolution Bill 1950 (Cth) - the so-called 'Anti-Communism Bill, which threatened to herald an era of McCarthyism in Australia and to undermine accepted and valued legal principles including the presumption of innocence, freedom of belief and speech, and the rule of law. See George Williams 'Australian Values and the War Against Terrorism', in UNSW Law Journal, Vol.26(1), 2003, p.191-194.
- George Williams, ibid, p.197.
- Australian Security Intelligence Organisation Legislation Amendments (Terrorism) Bill 2002 [No 1] (Cth) c.34M.
- The Bill was first examined by the Parliamentary Joint Committee on ASIO, ASIS and DSD, which reported in June 2002 (An Advisory Report on the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002), and subsequently sent the Senate Legal and Constitutional References Committee, which reported in August 2003 (Consideration of Legislation Referred to the Committee: Provisions of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002).
- Australian Security Intelligence Organisation Legislation Amendments (Terrorism) Act 2003, s.34D(3)(c).
- Ibid, s. 34HAB.
- Ibid, s. 34C(3)(a).
- Ibid, s. 34G(3 and 6).
- The Australian Senate, Legal and Constitutional Committee Report on Provisions of the Anti-Terrorism Bill (No.2) 2004, August 2004; http://www.aph.gov.au/senate/committee/legcon_ctte/anti_terror_2/report/...
- The Commission's full submission to the Senate Inquiry is available at http://www.humanrights.gov.au/legal/submissions/terrorism.html
- Criminal Code Act 1995 Cth, s.102.8.
- For more information, refer to http://www.humanrights.gov.au/racial_discrimination/isma/index.html
- Formally referred to as 'Principles relating to the status and functioning of national institutions for protection and promotion of human rights', as adopted by the UN General Assembly in December 1993.
- Section 11(1)(3) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).