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A Human Rights Guide to Australia's Counter-Terrorism Laws

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Friday 14 December, 2012

A Human Rights Guide To Australia’s Counter-Terrorism Laws (2008)

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1 What
is the guide about?

This guide provides a basic overview of Australia’s
counter-terrorism laws from a human rights perspective. It discusses the
following questions:

  • What impact can counter-terrorism laws have on human
    rights?
  • What counter-terrorism provisions have been introduced
    into the Commonwealth Criminal Code?
  • What counter-terrorism powers does the Australian
    Security Intelligence Organisation (‘ASIO’) have?
  • What counter-terrorism provisions have been introduced
    into the Commonwealth Crimes Act?
  • What information can be kept secret on national security
    grounds?
  • What are some examples of counter-terrorism cases which
    raise human rights issues?
  • What reforms would help ensure counter-terrorism laws
    uphold human rights?
  • Where can I find out more about counter-terrorism
    laws?

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2 What
impact can counter-terrorism laws have on human rights?

2.1 Human rights may
be infringed by counter-terrorism laws

Since the terrorist attacks on 11 September 2001, the
Australian Government has introduced more than 40 new counter-terrorism laws.
Click here to read a chronology of counter-terrorism laws introduced in Australia.

These laws have created new criminal offences, new
detention and questioning powers for police and security agencies, new powers
for the Attorney-General to proscribe (ban) terrorist organisations, and new
ways to control people’s movement and activities without criminal
convictions.

Counter-terrorism laws can have a profound impact on
fundamental human rights and freedoms, including:

  • The right to a fair
    trial;[1]
  • The right to freedom from arbitrary detention and
    arrest;[2]
  • The right not to be subject to
    torture;[3]
  • The right to
    privacy;[4]
  • The right to freedom of association and
    expression;[5]
  • The right to
    non-discrimination;[6]
  • The right to an effective remedy for a breach of human
    rights.[7]

These
rights are protected under international human rights treaties including the International
Covenant on Civil and Political Rights
(‘the
ICCPR’) and the Convention Against Torture
and Cruel, Inhuman and Degrading Treatment or Punishment
(‘CAT’).

Australia has voluntarily agreed to protect these rights
by ratifying the ICCPR and the CAT. However, in the absence of an Australian
Charter of Rights
some fundamental human rights receive
limited protection under Australian law.

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2.2 Some human rights
can be legitimately restricted. Other human rights must always be protected

In submissions
to counter-terrorism reviews
the Australian Human Rights
Commission (‘the Commission’) has said that counter-terrorism laws
must comply with Australia’s international human rights
obligations.[8] The Commission has
been critical of attempts to enact counter-terrorism laws without adequate
scrutiny of their human rights implications.

Making sure counter-terrorism measures comply with
Australia’s human rights obligations involves correctly identifying which
human rights are non-negotiable and which human rights can legitimately be
restricted in certain circumstances.

This is because international law allows certain
(‘derogable’) rights to be restricted but only if the restrictive
measure is a necessary and proportionate way of achieving a legitimate purpose.

Article 4(2) of the ICCPR provides that the following
‘non-derogable’ rights can not be breached in any circumstances:

  • the right to
    life;[9]
  • freedom of thought, conscience and
    religion;[10]
  • freedom from torture or cruel, inhuman or degrading
    punishment or treatment;[11]
  • the right to recognition everywhere as a person before
    the law;[12]
  • the principles of precision and non-retroactivity of
    criminal law;[13]
  • elements of the right to a fair
    trial;[14]

International human rights law recognises
that other ‘derogable’ rights can be limited in two
circumstances:

1. Derogable human rights can be limited in a state of
‘public emergency’.
The threat of terrorism may constitute a
public emergency in some circumstances. For example, in 2004, the UK House of
Lords accepted that the threat of terrorism may constitute a ‘public
emergency’.[15] However, the
Court also held that ‘measures taken by a member state in derogation of
its obligations under the [European Convention on Human Rights] Convention
should not go beyond what is strictly required by the exigencies of the
situation’.[16] Therefore,
although the House of Lords agreed there was a ‘public emergency’,
they found this state of emergency did not justify discriminatory
counter-terrorism measures under which foreign nationals, but not British
nationals, could be detained without trial.

2. Derogable human rights can be limited if the
limitation is proportionate and necessary response to a threat to national
security.
For example, article 19 of the ICCPR protects the right to
freedom of expression. International human rights law says that any law that
limits a derogable human right must be proportionate and necessary to achieve
its purpose (eg, preventing a terrorist
act).[17] In other words,
counter-terrorism laws need to have ‘sufficient safeguards to stand the
test of proportionality and
fairness’.[18] Article 19(3)
enables this right to be restricted if the restrictions are necessary and
proportionate to protect national security in a democratic society. If laws
which limit freedom of expression are too broad or too vague it will be
difficult to characterise the laws as necessary and proportionate to the purpose
of protecting national security. But if laws are carefully targeted at
expression which is ‘directly causally responsible for increasing the
actual likelihood of a terrorist act
occurring’[19] then they are
more likely to pass the proportionality test.

Factors to consider when assessing whether an action is
proportionate are:

  • Why is the action necessary?
  • To what extent does the action impair the
    right?
  • Could the purpose of the action be achieved through less
    restrictive measures?
  • Do legal safeguards against abuse
    exist?

The proportionality test does not
apply to non-derogable rights which can not be limited in any circumstances. For
example, the right to be free from torture can not be breached in any
circumstances.

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2.3 Human rights
concerns about counter-terrorism laws

Aspects of Australia’s counter-terrorism laws have
been criticised for containing inadequate safeguards against potential human
rights abuses.

Unlike the United Kingdom, Australia does not have a
Charter of Rights. The Commission is concerned that some counter-terrorism laws
(for example, ASIO’s powers to detain and question non-suspects) do not
have adequate safeguards against abuse or to correct mistakes.

The cases of David Hicks and Dr Mohamed Haneef have
highlighted the injustices that can result if counter-terrorism measures do not
comply with fundamental human rights standards (see further .

The
Commission’s submissions to counter-terrorism
reviews
have expressed concern that aspects of
Australia’s counter-terrorism laws contain inadequate safeguards against
human rights abuses.

The following reviews of counter-terrorism laws have
recommended important changes to existing laws.

  1. The report of the Australian Law Reform Commission
    (‘ALRC’), Fighting Words:
    A Review of Sedition Laws in Australia, (‘the Fighting Words
    Report’).
  2. The
    Report of Security Legislation Review Committee
    (‘the SLRC Report’).
  3. The
    report of Australian Parliamentary Joint Committee on Intelligence and Security
    Review of Security and Counter-terrorism Legislation (‘the PJCIS
    Report’).

A 2006 report
by the United Nations Special Rapporteur
on the promotion
and protection of human rights and fundamental freedoms while countering
terrorism criticised aspects of Australia’s counter-terrorism laws.

The Special Rapporteur urged Australia to enact federal
legislation which implements the ICCPR and provides remedies for breaches of
rights and freedoms.

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3 What
counter-terrorism provisions have been introduced into the Criminal Code?

The main terrorism laws introduced after 11 September 2001
are contained in the Criminal
Code 1995
(Cth) (‘the Criminal Code’) at
Schedule 1, Part 5.3 (Terrorism)
, divisions
100-103.[20] Part 2.4 of the
Criminal Code criminalises incitement to criminal acts including incitement to
terrorism.

The Security Legislation Amendment (Terrorism) Act 2002 amended the Criminal Code by:

  • defining a ‘terrorist act’;
  • introducing offences that criminalise acts involving the
    planning and committing of a terrorist act;
  • introducing offences that criminalise a person’s
    involvement or association with a terrorist organisation;
  • giving the Attorney-General the power to proscribe (ban)
    a terrorist organisation.

You can read
the Commission’s submissions on the Security Legislation Amendment
(Terrorism) Bill 2002
here.

The Anti-Terrorism Act (No.2) 2005 further amended the Criminal Code by introducing control orders,
preventative detention orders and new sedition offences. This Act also
introduced new police counter-terrorism ‘stop and search’ powers
into the Crimes Act 1914 (Cth). You can read the Commission’s
submissions on the Anti-Terrorism Bill (No.2) 2005 here.

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3.1 Defining
a terrorist act

Section 100.1 of the Criminal Code defines a terrorist act
as ‘an action or threat of action’ which is done or made with the
intention of:

  • advancing a political, religious or ideological cause; and
  • coercing, or influencing by intimidation, the government
    of the Commonwealth, State or Territory or the government of a foreign country
    or intimidating the public or a section of the
    public.

Action will only be defined as a
terrorist act if it:

  • causes serious physical harm or death;
  • seriously damages property;
  • endangers a person’s life;
  • creates a serious risk to public health or safety; or
  • seriously interferes with, seriously disrupts, or
    destroys, an electronic system.

Action
will not be a terrorist act if it is advocacy, protest, dissent or industrial
action and is not intended to cause serious physical harm or death,
endanger the lives of others or create a serious risk to the public health or
safety.

The definition of a terrorist act has been criticised as
being so broad its meaning is
unclear.[21]

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3.2 Criminalising
terrorist acts

Under Division 101 of the Criminal Code it is an offence
to:

  • engage in a terrorist
    act;[22]
  • provide or receive training connected with the
    preparation for, the engagement of a person in or assistance in a terrorist
    act;[23]
  • possess a thing connected with the preparation for, the
    engagement of a person in or assistance in a terrorist
    act;[24]
  • collect or make documents connected with the preparation
    for, the engagement of a person in or assistance in a terrorist
    act;[25]
  • do any act in preparation for, or planning a terrorist
    act.[26]

These offences apply even where a
terrorist act does not actually happen, the offences are not done in connection
with a specific terrorist attack, or the offence is done in connection with more
than one terrorist attack. Criticisms that these offences were too broad were
rejected by the SLRC and Parliamentary Joint Committee
on Intelligence and Security (‘PJCIS’)
reports.[27]

As well as the offences in Division 101, the Criminal Code
also criminalises attempts to commit these offences, the incitement of these
offences and the use of an innocent agent to commit the
offences.[28]

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3.3 Proscribing
a terrorist organisation

A terrorist organisation is defined in s 102.1(1) of the
Criminal Code as:

  • ‘an organisation that is directly or indirectly
    engaged in preparing, planning, assisting in or fostering the doing of a
    terrorist act (whether or not the terrorist act occurs)’ or
  • an organisation that is listed in the terrorist
    organisation regulations in accordance with a proscription process set out in ss
    102.1(2), (3) and (4).

The Attorney can
proscribe a ‘terrorist organisation’ under s 102.1(2) of the
Criminal Code if he or she is satisfied on reasonable grounds
that:

  • the organisation is directly or indirectly engaged in,
    preparing, planning, assisting in or fostering the doing of a 'terrorist act'
    (whether or not the terrorist act has occurred or will occur) or
  • ‘advocates’ the doing of a terrorist act.

The Attorney can decide to repeal the
listing of (‘delist’) a proscribed terrorist organisation. An
individual or organisation (including the proscribed organisation) can apply to
the Attorney to be de-listed.

While the Attorney has to consider the
application, he or she has absolute discretion as to the matters that he or
she considers in deciding whether to de-list an organisation.

As a consequence of proscription, a person who is
connected with a terrorist organisation may be charged and convicted of serious
criminal offences. A person who is being prosecuted for an offence involving his
or her connection with a terrorist organisation can not deny in Court that the
proscribed organisation is in fact a terrorist
organisation.[29]

To date, 19 organisations have been listed as 'terrorist
organisations'. Eighteen of these organisations self-identify as Islamic
organisations.

(a) The definition of ‘advocates’ should be
amended

Section 102.1(1A) of the Criminal Code
states an organisation advocates the doing of a terrorist act if the
organisation:

(a) ... directly or indirectly counsels or urges the doing
of a terrorist act; or
(b) ....directly or indirectly provides instruction on the
doing of a terrorist act; or
(c) ....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.

The Commission believes that this definition of
‘advocates’ is too broad and could possibly result in breaches of
the right to freedom of expression. The SLRC Report recommended paragraph (c) be
deleted or, if it was not, that the word ‘risk’ be replaced with
‘substantial risk’.[30]

(b) The process of proscription should be
reformed

The SLRC Report recommended that the process of
proscription be reformed in order to create a fairer, more transparent
system.[31] The Commission supports
this recommendation. The Commission is concerned about the current proscription
process because of:

  • the lack of clear criteria to guide the use of the
    Attorney’s proscription powers;
  • the lack of opportunities to oppose the proposed
    proscription; and
  • the lack of opportunity to seek independent merits review
    of the decision to proscribe a terrorist organisation.

The Commission believes that the
proscription process should be a judicial rather than executive process.
Alternatively, if the Attorney remains responsible for proscribing terrorist
organisations, the process would be fairer if there was independent merits
review of the Attorney’s decision to proscribe an organisation. You can
read the Commission’s submissions on the proscription of terrorist
organisations here.

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3.4 Criminalising
relationships with terrorist organisations

Once an organisation is listed as a
terrorist organisation, a person who has certain relationships with that
‘terrorist organisation’ may face criminal charges under the
Division 102 of Criminal Code. Sections 102.2 to 102.8 make it an offence
to:

  • direct the activities of a terrorist
    organisation;[32]
  • be a member of a terrorist
    organisation;[33]
  • recruit a person to join or participate in the activities
    of a terrorist
    organisation;[34]
  • provide training to or receive training from a terrorist
    organisation;[35]
  • receive funds from or make funds available to a terrorist
    organisation;[36]
  • provide support or resources that would help a terrorist
    organisation directly or indirectly engage in preparing, planning, assisting in
    or fostering the doing of a terrorist act (whether or not the terrorist act
    occurs);[37]
  • on two or more occasions associate with a member or
    person or promotes or directs activities of a terrorist
    organisation.[38]

The
Commission is concerned that some of these offences are so broad it is not clear
what conduct they criminalise. For example, the offence of association with a
terrorist organisation (s 102.8) does not pass the proportionality test.
Significantly, the SLRC Report recommended that the offence of association with
a terrorist organisation be repealed, stating ‘the interference with human
rights [created by the offence] is disproportionate to anything that could be
achieved by way of protection of the community if the section were
enforced’.[39]

The
SLRC Report and the PJCIS Report both recommended clarifying the scope of some
of the ‘terrorist organisation’ offences. The charging of Dr Mohamed
Haneef with an offence contrary to s 102.7 (providing support or resources that
would help a terrorist organisation) of the Criminal Code has renewed criticism
that the offences in Division 102 are too broad and should be amended so they
can be defined with certainty.[40] The charge against Dr Haneef was later dropped. You can read more about the case
of Dr Haneef below at [4.1].

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3.5 Criminalising
sedition

The Anti-Terrorism Act 2005 (No.2) introduced new
offences of sedition and repealed the old sedition offences contained in the
Crimes Act. The sedition offences have provoked public debate about how freedom
of expression should be protected.

The five sedition offences in s 80.2 make it an offence
for a person to:

  1. urge another person to
    overthrow by force or violence the Constitution or the Government of the
    Commonwealth, a State or a Territory; [41]
  2. urge another person to interfere by force or violence
    in parliamentary
    elections;[42]
  3. urge a group or groups (whether distinguished by race,
    religion, nationality or political opinion) to use force or violence against
    another group or groups, where that would threaten the peace, order and good
    government of the Commonwealth;[43]
  4. urge another person to assist an organisation or
    country that is at war with the Commonwealth (whether declared or
    undeclared);[44]
  5. urge another person to assist those engaged in armed
    hostilities with the Australian Defence
    Force.[45]

The first three offences contain recklessness as a fault
element in relation to some of the elements of the offence. This means that for
a person to commit an offence of sedition the person must:

  • intentionally urge another person to engage in the
    prohibited conduct, and
  • be reckless as to the consequences of that
    action.

Under the Criminal Code it is a
defence to a charge of sedition that the acts in question were done ‘in
good faith’. For example, public comments made in good faith pointing out
mistakes in government policy or urging people to lawfully change laws or
policies will not be caught by the sedition provision. This defence also allows
the publication in good faith of a report or commentary about a matter of public
interest.

The ALRC
report, Fighting Words:
A Review of Sedition Laws in Australia
, recommended 30 changes to the sedition laws in order to draw ‘a bright
line between freedom of expression – even when exercised in a challenging
or unpopular manner – and the reach of the criminal law’.

The ALRC recommended that for a person to be guilty of any
of the offences in ss 80.2(1), (3) and (5) of the Criminal Code, the person
must intend that the urged force or violence will occur. By removing the
element of recklessness, the ALRC sought to:

...help remove from the ambit of the offences any
rhetorical statements, parody, artistic expression, reportage and other
communications that the person does not intend anyone will act upon, and it
would ensure there is a more concrete link between the offences and force or
violence.[46]

The rationale behind the ALRC’s recommendations is
that the only speech which should be criminalised is speech that is intended to provoke violence.

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3.6 Control orders

The Anti-Terrorism Act (No.2) 2005 (Cth) gave
federal courts the power to make control orders under division 104 of the
Criminal Code in response to a request from the Australian Federal Police
(‘AFP’).

A control order can allow a variety of obligations,
prohibitions and restrictions to be imposed on a person for the purpose of
protecting the public from a terrorist act. For example, a control order can
require a person to stay in a certain place at certain times, prevent a person
from going to certain places or talking to certain people, or wear a tracking
device. These restrictions can impact on fundamental rights and freedoms
including the rights to liberty, privacy, freedom of association, freedom of
expression and freedom of movement.

To obtain an ‘interim control order’ a senior
AFP Officer may (with the consent of the Attorney-General) seek such an order
from the Federal Court, Family Court or Federal Magistrates Court. The court may
make an interim control order if it is satisfied, on the balance of
probabilities that:

  • making the order would substantially assist in preventing
    a terrorist act; or the person has provided training to, or received training
    from, a listed terrorist organisation; and (in either case)
  • each of the obligations, prohibitions and restrictions to
    be imposed on the person by the order is reasonably necessary, and reasonably
    appropriate and adapted, for the purpose of protecting the public from a
    terrorist act.

Interim control orders are
to be issued ex parte (the person against whom the control order is
sought is not present in court) in all cases. This is unusual. Normally it is up
to the courts to decide whether there are exceptional circumstances that mean
that it is necessary for the proceedings to be conducted ex parte.

If the AFP wish to confirm the control order, they must go
back to court and seek a confirmed order. The court will make a decision after
hearing evidence from both parties.

The person who is the subject of the interim control order
must be given 48 hours notice of the confirmation hearing, a summary of the
grounds on which the interim control order was made, and the documents given to
the Attorney-General in order to obtain his or her consent to seek an interim
control order.

However, the information provided to the person upon whom
the interim control order has been imposed will not include any information
which is considered to prejudice national security or jeopardise police
operations. This means the person subject to the order may not be aware of some
of the evidence against him or her.

Australia’s control order scheme is partly based on
the scheme in the United Kingdom but there are significant differences, notably
that the UK scheme is structured around the Human Rights Act 1998 (UK).
Click here to read a comparison between control orders in Australia and in the United
Kingdom.
Criticisms of Australia’s control
order scheme have focused on the lack of safeguards to ensure the restrictions
imposed by control orders do not breach basic human rights, and the ex-parte
nature of interim control order
hearings.[47]

In 2007, the High Court upheld the constitutional validity
of control orders (see below at [10.1(b)].

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3.7 Preventative
detention orders

The Anti-Terrorism Act (No.2) 2005 (Cth)
established Preventative Detention Orders (‘PDOs’) under division
105 of the Criminal Code. Like control orders, PDOs represent a fundamental
departure from the long-held principle that a person should not be detained
without trial.

There are two types of PDOs:

  • An initial PDO permits detention for up to 24
    hours and can be granted by a senior member of the AFP on application by another
    AFP officer.
  • A continued PDO may be made after an initial PDO
    has been granted and allows detention to continue for another 24 hours. A
    continued PDO must be made by a federal judge or federal magistrate, acting in
    his or her personal capacity.

To make or
extend any order, the issuing authority must be satisfied on the basis of
information provided by the AFP that there are reasonable grounds to suspect
that the person:

  • will engage in a terrorist act, or
  • possesses something connected with the preparation for,
    or the engagement of a person in, a terrorist act, or
  • has done or will do an act in preparation for, or in
    planning a terrorist act.

Disclosing the
existence of a PDO is an offence and can be punishable by up to 5 years
imprisonment. While a detainee is allowed to contact a lawyer, this contact is
monitored by police.

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4 What
counter-terrorism provisions have been introduced into the Crimes
Act?

4.1 Police powers to
detain and question terrorist suspects

In 2004, the Anti-Terrorism Act 2004 (Cth) introduced special powers for the Australian Federal Police
(‘AFP’) to question terrorism suspects without charge into Part 1C,
Division 2 of Crimes Act 1914 (Cth) (‘the Crimes Act’). These powers mean that upon arrest for a terrorism offence a person can be
detained without charge for the purpose of investigating whether the person
committed the terrorism offence for which he or she was arrested and/or another
terrorism offence that an investigating official reasonably suspects the person
committed.[48]

Under ss 23CA(4) of the Crimes Act a person can only be
detained for four hours, unless a magistrate extends the period of detention
under s 23DA. Under s 23DA(7) the magistrate can not extend the period of
detention for more than 20 hours. Therefore, the maximum period of time that a
person can be detained for questioning is 24 hours.

However, this 24 hour cap is not a safeguard against
indefinite detention because it excludes ‘dead
time’.[49] What will count as
dead time is set out in the Crimes Act and can include contacting a lawyer, meal
breaks and times when the suspect is sleeping. The broad scope of what can count
as ‘dead time’ means that it can be difficult to predict how long a
person may be detained. This became obvious in the case of Dr Haneef (see
below).

The Commission is concerned that pre-charge detention
under Part IC of the Crimes Act permits violations of:

  • the prohibition on arbitrary detention (Article 9(1) of
    the ICCPR);
  • the right of an individual to be informed, at the time of
    arrest, of the reasons for his or her arrest and be promptly informed of any
    charges against him or her (Article 9(2) of the ICCPR); and
  • the right of any person arrested or detained to be
    brought promptly before a judge or other officer authorised to exercise judicial
    power to rule on the lawfulness of that detention (Article 9(3) of the ICCPR).

The powers under Part 1C, Division 2 of the
Crimes Act were used in the case of Dr Mohamed Haneef. Click here to read why the Commission considers this case highlights the problems with Part
IC, Division 2 of the Crimes Act.

Case Study – the case of Dr Mohamed
Haneef

Dr Haneef was detained and questioned without charge by
the police for 12 days under Part 1C, Division 2 of the Crimes Act. Although the Crimes Act 1914 (Cth) states people can only be detained and
questioned for 24 hours, the use of the ‘dead time’ provisions meant
that Dr Haneef was detained for much longer.

After being detained and questioned, on 14 July Dr
Haneef was charged with having intentionally provided support, while being
reckless as to whether the organisation was a terrorist organisation. Facts said
to support the charge were that Dr Haneef had given a SIM Card to his second
cousin, SabeEl Ahmed, who was involved in the attack on Glasgow International
Airport.

On 16 July 2007 Dr Haneef was granted bail by a
Queensland magistrate. Although s 15AA of the Crimes Act provides that, where a
person is charged with certain terrorism offences (including an offence under s
102.7 of the Criminal Code) bail can only be granted in exceptional
circumstances, in Dr Haneef’s case the Magistrate found that there were
exceptional circumstances in favour of granting bail.

Immediately after bail was granted, the then Minister
for Immigration and Citizenship, Kevin Andrews, cancelled Dr Haneef’s visa
on ‘character grounds’. The decision to cancel Dr Haneef’s
visa on ‘character grounds’ was made under s 501(3) of the Migration Act 1956 (Cth) on the basis that Dr Haneef had or had
‘had an association with someone else, or with a group or organisation,
whom the Minister reasonably suspects has been or is involved in criminal
conduct’, namely the Dr Sabeel Ahmed and Dr Kafeel Ahmed. The practical
effect of this decision was that while a judicial decision secured Dr
Haneef’s immediate liberty, the exercise of executive discretion returned
him to (immigration) detention.

On 27 July 2007, the criminal charges against Dr Haneef
were dropped due to lack of evidence. On application for judicial review, a
single judge of the Federal Court quashed the Minister of Immigration’s
decision to revoke Dr Haneef’s
visa.[50] This decision was upheld
on appeal to the Full Federal
Court.[51]

The Full Federal Court unanimously upheld Justice
Spender’s decision that the Minister had misinterpreted the character test
and incorrectly applied a test that was too wide. The Full Court concluded that
the ‘association’ referred to in the Migration Act 1956 (Cth) must involve some sympathy with, or support for, or involvement in,
the criminal conduct of the person, group or organisation with whom the visa
holder is said to have associated. The association must have some bearing
upon the person’s character. You can read the Full Court’s decision here.

n 13 March 2008, the Government announced that former
judge, John Clarke, would be conducting an Inquiry into the handling of Dr
Haneef’s case. The Inquiry is due to report in September 2008.You can read
the Commission’s submission to the Inquiry here.

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4.2 Reversal of onus
of proof for granting bail in terrorism matters

The Anti-Terrorism Act 2004 (Cth) also introduced s
15AA of the Crimes Act which provides that, where a person is charged with
certain terrorism offences, bail must not be granted unless the bail authority
is satisfied that exceptional circumstances exist to justify granting bail. This
provision reverses the presumption in favour of granting bail, and creates a
presumption against granting bail where a person is charged with a terrorism
offence.

The UN Special Rapporteur has expressed concern about the
reversal of the onus for granting bail, stating that ‘each case must be
assessed on its merits, with the burden upon the State for establishing reasons
for detention’.[52]

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4.3 Police powers to
stop, search and seize in terrorist investigations

The Anti-Terrorism Act (No.2) 2005 expanded
the powers of the AFP, and State and Territory police to stop, question and
search persons for the purposes of investigating and preventing terrorism by
introducing ss 3UA to 3UK of the Crimes Act.

Under these provisions the Attorney has the power to
declare a ‘prescribed security zone’ if the Attorney
considers that this will help prevent a terrorist act or help respond to a
terrorist act. The police can use their stop, search, questioning and seizure
powers on anyone in the prescribed security zone, regardless of whether the
police officer has a reasonable suspicion
that the person has committed, is
committing or is planning to commit a terrorist act.

A police officer can also use the stop, search,
questioning and seizure powers in a Commonwealth place that has not been
declared a ‘prescribed security zone’, but only if the police
officer suspects on reasonable grounds that the person might have just
committed, might be committing or might be about to commit a terrorist act.

The Attorney is not required to publish reasons explaining
why it was necessary to declare a prescribed security zone and there is no
mechanism for independent review of the use of these powers.

The UN Special Rapporteur has expressed concern that the
duration of the declaration of a prescribed security zone (28 days) could lead
to potentially unnecessary or disproportionate interferences with liberty and
security and could impact on the right to undertake lawful
demonstrations.[53]

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5 What powers does ASIO
have under counter-terrorism laws?

The ASIO Legislation Amendment (Terrorism) Bill
2002
was introduced in March 2002 with the purpose of expanding the powers
of ASIO to collect intelligence concerning the threat of terrorism. It provoked
widespread concern that rights – such as the right not to be detained
without charge and the right to remain silent – that had previously been
respected as inviolable were being eroded.

The
Parliamentary Joint Committee on ASIO, ASIS and DSD unanimously described the
initial Bill as ‘the most controversial piece of legislation ever reviewed
by the Committee’. The Committee found it would ‘undermine key legal
rights and erode the civil liberties that make Australia a leading
democracy’ and recommended significant
amendments.[54]

As a result of fierce debate the Australian Security
Intelligence Organisation Legislation Amendment (Terrorism) Act 2003
was
significantly different from the original 2002 Bill. However, the 2003 Act was
still highly controversial.

The 2003 Act gave ASIO special powers under Division 3 of
Part III of the Australian Security Intelligence Organisation Act 1979 (Cth)(‘the ASIO Act’) to seek two kinds of special
warrants:

  • a warrant which authorises the questioning of a person;
    and
  • a warrant which authorises detention and questioning of a
    person.

Since 2003, 15 questioning
warrants have been issued. No detention warrants have been issued.

A warrant to
detain and question a person is issued on the application of the Director
General of ASIO, who has the Attorney General General’s consent to
apply. The detention authorised by the ASIO Act is not
limited to persons who are suspected of being involved in committing or planning
to commit a terrorist offence. The detention and question warrants can apply to
anyone who is able to ‘substantially assist in the collection of
intelligence that is important in relation to a terrorism offence’.

Because a question and detention warrant can authorise the
detention of a person for up to seven days, this means that a person who is not suspected of a terrorism offence can be detained for longer than a
terrorist suspect who is questioned by the Australian Federal Police under the
Crimes Act 1914.

The former High Court Chief Justice, Sir Gerard Brennan,
described the process for obtaining a detention or questioning warrant as
follows:

The warrant [to detain or question a person] may be
issued once the issuing authority is satisfied ASIO Act 1979, ss 34E(1)(b),
34G(1)(b) ‘that there are reasonable grounds for believing that the
warrant will substantially assist the collection of intelligence that is
important in relation to a terrorism offence’. A semblance of legality is
provided by limiting the issuing authorities to Federal Magistrates and Judges
who consent to being appointed by the Minister. They do not act in a judicial
capacity but as personae designatae exercising executive authority. The
procedure for obtaining a warrant does not resemble standard judicial procedure.
The ASIO application is made ex parte and the subject is not informed of the
grounds advanced for the warrant. If the subject should want to challenge the
sufficiency of the grounds on which the warrant is issued, his or her legal
adviser is not entitled to see any document other than the warrant itself ASIO
Act 1979, s 34ZQ(4)(b). In any event, contact with that legal adviser, if
permitted at all, is monitored by a person exercising authority under the
warrant ASIO Act 1979, s34ZQ(1). Unless the warrant allows a person who is being
detained, either by the warrant or by a ‘prescribed authority’ ASIO
Act 1979, s34K(1)(d) to contact somebody, he or she can be prevented from
contacting anyone ASIO Act 1979, s 34K(10). In summary, a person may be detained
in custody, virtually incommunicado, without even being accused of involvement
in terrorist activity, on grounds which are kept secret and without effective
opportunity to challenge the basis of his or her
detention.[55]

The UN Special Rapporteur also expressed concern that
although a person detained under the ASIO legislation can make a complaint to
the Inspector-General of Security Intelligence, a detained person ‘has no
right to seek a judicial review of the validity, or terms, of an issuing
authority’s warrant [and] ... no right to be brought before any judicial
body other than a prescribed authority’. The Special Rapporteur said
‘the absence of these rights is of grave concern ...offending the right to
a fair hearing and the right to have the legality of one’s detention
determined by an independent and competent authority’. [56]

Under the ASIO Act it is an offence to disclose
‘operational information’ obtained directly or indirectly through a
questioning warrant or a questioning and detention warrant within 2 years of the
warrant expiring. It is also an offence to disclose that someone is subject to
the warrant and there are no exceptions for reporting by journalists, even if
the report seeks to expose abuse or misuse of the warrant system.

When it was enacted, the ASIO Act included a three year
sunset clause. In 2006, Parliament extended the sunset clause on the ASIO
legislation by 10 years to 22 July 2016.

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6 What
information can be kept secret for national security reasons?

Under the National Security Information (Criminal and
Civil Proceedings) Act 2004
(‘the NSIA’) evidence in terrorism
trials can be admitted in a closed hearing from which the defendant may be
excluded, at least for part of the evidence.

Even the defendant’s lawyer may be excluded from
hearing the evidence if they have not been given a security clearance and the
court decides it is likely that national security may be prejudiced by letting
the defence have access to the information.

Under the NSIA, if the Attorney-General-General is of the
view that:

  • information will be disclosed which will prejudice
    national security; or
  • the mere presence of a person whom a party intends to
    call as a witness will disclose information that would prejudice national
    security

the Attorney-General may issue a
certificate, which prevents or restricts disclosure of the information or
prevents the calling of a witness.

Any certificate issued by the Attorney-General must be
considered by the court in a closed hearing.

After the closed hearing, the court must make an order
about whether the information may be disclosed or, in the case of a witness
whose mere presence would prejudice national security, whether that person can
be called in proceedings.

In making this decision, the court is required to consider
whether the order would have ‘a substantial adverse effect’ on the
defendant’s right to a fair hearing. However, the court must give the
greatest weight to the Attorney-General’s certificate.

Under the Act the Attorney-General’s certificate is
treated as conclusive evidence that ‘the disclosure of the information is
likely to prejudice national security’.

While national security concerns must be considered, this
test weights this discretion in favour of the Attorney-General. Former High
Court Justice Michael McHugh observed:

It is no doubt true in theory the National Security
Information (Criminal and Civil Proceedings) Act does not direct the court to
make the order which the Attorney-General wants. But it does as close as it
thinks it can. It weights the exercise of the discretion in favour of the
Attorney-General and in a practical sense directs the outcome of the closed
hearing. How can a court make an order in favour of a fair trial when in
exercising its discretion, it must give the issue of fair trial less weight than
the Attorney-General’s
certificate.[57]

In 2005, the NSIA was expanded to cover civil proceedings.

In the UK and Canada ‘Special Advocates’ have
been used to try to make the court process fairer where a person (and his or her
lawyer) is prevented from viewing security sensitive information.

A Special Advocate is a specially appointed security
cleared lawyer who acts in the interests of a party to proceedings when that
party, and his or her legal representative, have been excluded, on security
grounds, from attending closed hearings or from accessing material.

A Special Advocate’s relationship with the accused
is different from the relationship between an ordinary lawyer and his or her
client. While the Special Advocate can access security sensitive information and
represent the interests of the person, the Special Advocate is not allowed to
reveal this information to the person.

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7 What
are some counter-terrorism cases that raise human rights issues?

To date, four people have been convicted of terrorism and
terrorism-related offences in Australia. According to the
Attorney-General’s Department’s website more than 20 defendants are
currently before Australian courts on terrorism-related charges. More
information about Australian counter-terrorism cases is available here.

Two counter-terrorism cases that resulted in public debate
about the impact of counter-terrorism measures on fundamental human rights were
the cases of Joseph Thomas and David Hicks. Both of these cases involved
multiple legal proceedings.

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7.1 The case of
Joseph Thomas

(a) Evidence obtained under
duress is not admissible

In January 2003, an Australia citizen called Joseph Thomas
was detained by Pakistani authorities at Karachi. In June 2003, he was released
and returned to Australia. In 2004, Mr Thomas was arrested and charged with a
number of offences. On the 26 February 2007, he was convicted of the offences of
receiving funds from a terrorist organisation and of possessing a falsified
Australian passport.

The trial which led to these convictions was controversial
because, despite claims that evidence obtained from Mr Thomas when he was in a
Pakistani military prison was obtained under duress, the judge held the evidence
was admissible.

Mr Thomas successfully appealed against the convictions.
In August 2006, the Victorian Court of Appeal overturned the convictions on the
basis that admissions he made in his interview with the AFP were not
voluntary.[58]

The Court concluded that nothing occurred in the AFP
interview itself that resulted in Mr Thomas’ will being overborne.
However, in the context of his detention in Pakistan, the inducements and
threats that were made to Mr Thomas by Australian, American and Pakistani
authorities, including the prospect of indefinite detention, the Court concluded
that Mr Thomas' choice to participate in the AFP interview was not made freely.
In accordance with the common law principle that a confessional statement made
out of court by an accused person is not admissible unless it was made
voluntarily, the Court ruled that the evidence obtained in Mr Thomas’ AFP
interview was not admissible.

On 20 December 2006, the Victorian Court of Criminal
Appeal decided Mr Thomas should be re-tried on the basis of new evidence that
came to light in a media interview with Mr Thomas. Mr Thomas’ lawyers made
an unsuccessful application to the High Court for leave to appeal against a
decision to refuse their application to set aside the orders for a retrial. Mr
Thomas is currently being retried.

(b) Australia’s first
control order imposed on Mr Thomas

In August 2006, an interim control order was issued
against Mr Thomas on grounds related to allegations Mr Thomas had trained with
Al’Qaida and had links with extremists. This was the first control order
issued in Australia. The UN Special Rapporteur expressed concern about the
timing of the order stating:

The imposition of a control order should never substitute
for criminal proceedings and the Special Rapporteur expresses concern that the
order imposed against Thomas came just days after a state Court of Appeal
quashed a terrorist financing conviction against him. Where criminal proceedings
can not be brought, or a conviction maintained, a control order might (depending
on the facts and conditions of that order) be justifiable where new information
or the urgency of a situation call for action to prevent the commission of a
terrorist act. Transparency and due process must always be maintained in such
cases, with the order regularly reviewed to ensure it remains necessary. [59]

Mr Thomas challenged the constitutionality of the control
order legislation in the High Court.

In Thomas v
Mowbray
[60] the majority
of the High Court (Kirby and Hayne J dissenting) upheld the validity of the
control order legislation. The majority held:

  • The control order provisions do not confer non-judicial
    power contrary to Chapter III of the Constitution. The standard of
    ‘reasonably necessary’ and ‘reasonably appropriate and
    adapted’ for the purpose of protecting the public is not inherently too
    vague for use in judicial decision-making. A court can make predictions about
    the danger to the public in terrorist threats in a similar way to the way it
    does when it issues apprehended violence orders.
  • The control order provisions do not require the Court to
    exercise judicial power in a manner that us contrary to Chapter III. The Court
    said the interim control orders have all the usual indicia of the exercise of
    judicial power. The fact that control orders are issued on the balance of
    probabilities is not inconsistent with Chapter III and nor was the fact
    applications for interim control orders are heard ex-parte.
  • The control order provisions are supported by the Defence
    power. Therefore, it was unnecessary to consider whether they were also
    supported by the external affairs power or the implied power to protect the
    nation.

The control order issued against
Mr Thomas expired in August 2007.

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7.2 The case of David
Hicks

(a) The right to a fair trial

The treatment of David Hicks, who was detained without
trial in Guantanamo Bay for over five years, violated the right to a fair trial
protected by article 14 of the ICCPR and the prohibition on arbitrary detention
and arrest in article 9 of the ICCPR. Mr Hicks was denied the fundamental right
of habeas corpus (‘the right to challenge the lawfulness of his
detention’) and the right to be presumed innocent until proven guilty.

Mr Hicks is an Australian citizen who was captured among
Taliban forces in Afghanistan in 2001. On 11 January 2002, he was taken to
Guantanamo Bay where he was detained without charge as an ‘unlawful
combatant’. In July 2003, President George W. Bush decided that Mr Hicks
and five other Guantanamo Bay detainees were eligible for trial by Military
Commission.

Mr Hicks was charged on 10 June 2004 with conspiracy to
commit war crimes, attempted murder and aiding the enemy. In a hearing before a
US Military Commission in August 2004, he pleaded not guilty to all the charges.
In August 2004, Mr Hicks signed an affidavit alleging that he was repeatedly
beaten while blindfolded and handcuffed, shackled, deprived of sleep, held in
solitary confinement for approximately nine months, and threatened with
firearms and other weapons.

In June 2006, in Hamdan v
Rumsfeld
[61] the US Supreme Court decided that the military commissions established by
the President to try Guantanamo Bay detainees were not of the type
authorised to be set up by Congress and were therefore unconstitutional. This
was because Congress had only authorised the establishment of military
commissions that comply with the common law of war and
common article 3 to the Geneva Conventions.

In response to the decision in Hamdan v Rumsfeld,
the US Congress passed the Military Commissions Act 2006 which
established new military commissions and opened the way for new hearings. In
2007, Mr Hicks was charged for a second time under the Military Commissions
Act 2006
(US), this time with providing material support for terrorism and
attempted murder.

A 2007 report by the Law Council of Australia was highly critical of the retrospective charges
brought against Mr Hicks under the Military Commissions Act 2006 and the
then Australian government’s failure to protect Mr Hicks’ rights and
seek to have him returned home. The report said that the then
government’s support of the Military Commission process was
‘obviously at odds with the Rule of Law’.

Mr Hicks was sentenced by a US Military Commission to
seven years imprisonment after pleading guilty to the charge of material support
for terrorism.  All but nine months of this sentence was suspended in
accordance with the terms of the plea bargain. As a condition of the plea
bargain agreement, Mr Hicks signed a document stating that he had never been
mistreated by US officials and renouncing all previous claims of torture or
ill-treatment. Under the plea bargain, Mr Hicks returned to Australia in May
2007 to serve out the remainder of his nine month sentence in a South Australian
prison.

On 21 December 2007, Mr Hicks became the second person in
Australia to be the subject of an interim control order. The control order
required that Mr Hicks report at least three times per week to a police station,
and be fingerprinted. Mr Hicks was subject to a curfew between midnight and 6am.
The order also imposed restrictions on where Mr Hicks could live, with whom he
could associate, where he could travel and his ability to communicate via email,
telephone and the internet. On 29 December 2007, Mr Hicks was released from
prison. The control order imposed on Mr Hicks was confirmed on 20 February 2008,
although some of its conditions were
relaxed.[62]

(b) The right not to be
subject to torture or cruel, inhuman or degrading treatment or
punishment

A 2006 report by the UN Commission on Human Rights on The
Situation of detainees in Guantanamo Bay
concluded that
detention practices at Guantanamo Bay breached international prohibitions on
torture and cruel, inhuman and degrading treatment. The right not to be
subjected to torture or cruel, inhuman or degrading treatment or punishment is
contained in article 7 of the CAT. This right is also protected by article 7 and
article 10 of the ICCPR.

During the time Mr Hicks and another Australian citizen,
Mamdouh Habib, were detained in Guantanamo Bay both men alleged they were
subjected to extended periods of solitary confinement, regular beatings, routine
sleep deprivation and were forced to take unknown medicine.

Mr Habib also alleges he was tortured in Egypt for seven
months before he was transferred to Guantanamo Bay and that Australian officials
were present while he was tortured. The Commonwealth denies these allegations.
Click here to read about this case.
Mr Habib’s claims are now the subject of legal proceedings in the Federal
Court of Australia. The matter is listed for hearing by the Full Federal Court
on 26 November 2008. At a recent hearing, Mr Habib’s lawyers sought access
to the document filed by the Commonwealth in defence of Mr Habib’s claims.
The Commonwealth refused to release the document without a formal application
and suggested it may call evidence against releasing the material. Click here to read about this recent development.

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7.3 The case of Abdul
Nacer Benbrika

On 15 September 2008 in R v Benbrika & Ors a
Victorian Supreme Court jury found Mr Abdul Nacer Benbrika guilty under the the
Criminal Code of the following offences:

  • being a member of a terrorist organisation (s102.3(1));
  • directing the activities of a terrorist organisation
    (s102.2(1)); and
  • possessing a thing connected with the preparation for a
    terrorist act (s101.4(1)).

Six of Mr
Benbrika's followers were found guilty of a number of offences including being a
member of a terrorist organisation, making funds available to a terrorist
organisation and intentionally providing resources to a terrorist organisation.
The jury found four other accused not guilty on all charges and did not make a
finding against one accused. Information about trial is available from the Commonwealth
Attorney- General’s website
.

In an earlier hearing in the Benbrika case, the
defendants applied to have their trial stayed on grounds of unfairness. They
claimed that the general conditions under which they were being held in
detention and transported to court each day was having a detrimental effect on
their psychological and physical well-being. The defendants were held in the a
maximum security outside of Melbourne. Prior to trial, all of the accused had
spent at least two years in custody. For the first year, the defendants spent up
to 23 hours a day in their cell. They were transported to court in vans divided
into small box-like steel compartments with padded steel seats, lit only by
artificial light. The defendants were strip-searched prior to their departure
from and upon their return to the prison.

Bongiorno J held that the conditions under which the
defendants were being held and transported rendered the trial unfair and should
be stayed unless the unfairness was remedied. Bongiorno J order that the
Secretary of the Department of Justice be joined to the case as an intervener
and be required to depose an affidavit that the following minimum alterations to
the Defendants conditions of incarceration and travel had been made to remove
the unfairness currently affecting this trial:

  • The
    Defendants be incarcerated for the rest of the trial at the Metropolitan
    Assessment Prison, Spencer Street.
  • The Defendants be transported to and from court directly
    from and to the MAP without any detour.
  • The Defendants be not shackled or subjected to any other
    restraining devices other than ordinary handcuffs not connected to a waist belt.
  • The Defendants not be strip searched in any situation
    where they have been under constant supervision and have only been in secure
    areas.
  • That the Defendants out of cell hours on days when they
    do not attend court be not less than ten.
  • That the Defendants otherwise be subjected to conditions
    of incarceration not more onerous than those normally imposed on ordinary remand
    prisoners, including conditions as to professional and personal
    visitors.

The decision can be read here.

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8 What reforms would
help ensure counter-terrorism laws comply with human rights?

Some counter-terrorism laws have been enacted with haste
and without adequate assessment of their impact on fundamental rights and
freedoms.

In 2006, the SLRC report expressed concern that government
agencies sometimes ’... passed over the invasive effect of particular
legislation on human rights, and said little about particular steps that might
have been taken by their agencies to alleviate such
effects.’[63]

The following steps could help ensure that
Australia’s counter-terrorism laws comply with international human rights
standards now and in the future.

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8.1 Introduce an
Australian Charter of Human Rights

In Australia there is no Charter of Rights which requires
the Parliament or the Courts to consider whether counter-terrorism laws comply
with human rights principles.

The Commission believes that in the future, the best way
to ensure that efforts to protect national security comply with
Australia’s international human rights obligations is to enact an
Australian Charter of Rights. An Australian Charter of Human Rights could mean
that in the future counter-terrorism measures are assessed within a human rights
framework. A Charter of Human Rights could – depending on its content
– ensure that:

  • non-derogable human rights are identified and
    protected;
  • counter-terrorism bills are accompanied by a human rights
    compatibility statement and legitimate restrictions on derogable human rights
    must be justified;
  • government agencies consider the human rights impact of
    counter-terrorism measures;
  • Courts act as a safeguard against executive overreach in
    individual counter-terrorism cases.[64]

A Charter of Human Rights could help
foster a human rights culture within government. Government agencies with
responsibility for national security could be encouraged to incorporate human
rights principles into policy development and implementation. Staff in these
agencies should also have human rights training and the human rights impact of
national security measures should be reviewed on a regular basis.

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8.2 Implement the
recommendations of major reports on counter-terrorism laws and establish an
independent reviewer of counter-terrorism laws

Australia’s existing counter-terrorism laws could be
improved by implementing the recommendations to:

  • clarify the unduly broad scope of offences relating to
    terrorist organisations;
  • create an independent reviewer of terrorism laws; and
  • amend the sedition laws contained in the Criminal
    Code.

The SLRC Report and PJCIS Report
have recommended that an Independent Reviewer of Counter-terrorism laws be
established to report on the operation of counter-terrorism laws. This reviewer
should have the ability to set their own agenda and access all necessary
information to report to Parliament.

Establishing an independent reviewer of counter-terrorism
laws is important because of the potential of some counter-terrorism laws to
infringe fundamental rights and the limited opportunity - in the absence of an
Australian Charter of Rights - for a person to challenge decisions which do not
comply with human rights.

The Commission believes an Independent Reviewer should:

  • have the power to obtain information from any agency or
    person that he or she considers is relevant to the review, including
    intelligence agencies; and
  • be required to consider the human rights impacts of
    counter-terrorism laws.

In the UK, an
independent reviewer has the mandate to review the implementation of terrorism
laws and report annually to
Parliament.[65]

There has been no formal government response to the
recommendation to introduce an independent reviewer. In March 2008, a private
members bill, the Independent Reviewer of Terrorism Laws Bill 2008 [No.2
]
(‘the Bill’), was introduced to establish an independent
reviewer of terrorism laws. On 2 September 2008 the Senate referred the Bill to
the Senate Standing Committee on Legal and Constitutional Affairs for inquiry
and report by 14 October 2008.

Information about the Bill and the inquiry can be found here.
On 12 September 2008, the Commission made a submission to the Inquiry. The
Commission’s submission supported the introduction of an Independent
Reviewer of Terrorism Laws. The Commission recommended that the Bill be amended
to require the Independent Reviewer to consider the human rights impacts of laws
relating to terrorist acts and to strengthen the Independent Reviewer’s
information gathering powers. To read this submission click here.

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8.3 Counter
discrimination and promote social inclusion

In 2004, a report by the Commission called Ismaع–Listen: National
consultations on eliminating prejudice against Arab and Muslim Australians
(‘the IsmaعReport’)
found that since the terrorist attacks on 11 September 2001 and the October 2002
Bali Bombings, members of Muslim and Arab communities have been experiencing
increasing levels of discrimination. The IsmaعReport
identified three main trends within the Muslim and Arab communities:

  • an increase in fear and insecurity;
  • the alienation of some members of the community;
    and
  • a growing distrust of authority.

A key recommendation from the Ismaع report is to enact federal legislation that makes discrimination and
vilification on the basis of religion unlawful. This recommendation has not been
implemented. You can read the Ismaع Report here.

The impact of the new security environment on Muslim and
Arab Australians was discussed in the SLRC and PJCIS Reports. The SLRC Report
expressed ‘serious concern’ about the way in which counter-terrorism
legislation is perceived by some members of Muslim and Arab communities.

The PJCIS Report found that ‘one of the damaging
consequences of the terrorist bombing attacks in the US, the UK, Europe and
Indonesia has been a rise in prejudicial feelings towards Arab and Muslim
Australia’. It also expressed concern about ‘reports of increased
alienation attributed to new anti-terrorist measures, which are seen as
targeting Muslims and contributing to a climate of
suspicion’.[66]

Both the SLRC and PJCIS Reports supported remedying these
problems through measures which promote social inclusiveness and counter
discrimination. To read about the Commission’s important work in this area
click here.

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9 Where
can I find more information about Australia’s counter-terrorism
laws?

9.1 Books

  • Andrew Lynch, Edwina MacDonald, George Williams (eds), Law and Liberty in the War on Terror, Federation Press
    (2007).
  • Andrew Lynch & George Williams, What Price
    Security? Taking Stock of Australia's Anti-terror Laws
    , University of New
    South Wales Press (2006).
  • Ben Saul, Defining Terrorism in International Law (Oxford
    University Press, Oxford, (2006).
  • Leigh Sales, Detainee 002: the Case of David
    Hicks
    . Melbourne University Press, (2007).

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9.2 Online resources

Reports

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9.3 Principal Legislation

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[1] Article 14 of the International Covenant of Civil and Political Rights (ICCPR).
[2] Article 9 of the ICCPR.
[3] Article 7 and 15 of the
CAT.
[4] Article 17 of the
ICCPR.
[5] Article 19 of the
ICCPR.
[6] Article 26 and Article 2(1) of the
ICCPR.
[7] Article(2) of the ICCPR.
[8] This approach is consistent with the United Nations Security Council Resolution
1373 which provides that provides that Australia has an obligation to take
action that is necessary to prevent and prosecute terrorism but only if such
action conforms with international human rights, humanitarian and refugee law. 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).
[9] Article 6 of the ICCPR.
[10] Article 18 of the
ICCPR.
[11]Article
7 of the
ICCPR.
[12] Article 16 of the ICCPR.
[13] Article 15 of the ICCPR.
[14] Article 14 of the
ICCPR.
[15]A (FC) and others (FC) v Secretary of State for the Home Department[2004] UKHL
56.
[16]A (FC) and others (FC) v Secretary of State for the Home Department[2004] UKHL 56, 30.
[17] 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: UN Human Rights Committee, General Comment No. 29 - States of Emergency
(Article 4),
[4]
[18] Security Legislation Review Committee (‘SLRC’), Report of the
Security Legislation Review Committee
(2006),
3.
[19] Joint declaration by the United Nations Special Rapporteur on Freedom of Opinion
and Expression, the OSCE Representative on Freedom of the Media and the OAS
Special Rapporteur on Freedom of Expression, 21 December
2005.
[20] Part 5.3 of the Criminal Code was subsequently amended by the Anti-Terrorism
Act (No.2) 2004
(Cth), the Anti-Terrorism Act 2005 (Cth) and the Anti-Terrorism Act 2005 (No.2) (Cth).
[21] Both the SLRC Report and the PJCIS report recommended that ‘threat’
of an act of terrorism be removed from the definition of terrorism and dealt
with as a separate criminal offence. Parliamentary Joint Committee on
Intelligence and Security, Review of Security and Counter-terrorism
Legislation,
December 2006, Recommendation 10; SLRC, Report of the
Security Legislation Review Committee
(2006); see also Special Rapporteur on
the Promotion and Protection of Human Rights while Countering Terrorism, Australia: Study on Human Rights Compliance while Countering Terrorism,UN Doc A/HRC/4/26/Add.3 (2006),
[10].
[22]Criminal Code Act 1995 (Cth) s 101.1.
[23]Criminal Code Act 1995 (Cth) s
101.2.
[24]Criminal Code Act 1995 (Cth) s
101.4.
[25]Criminal
Code Act 1995
(Cth)
s101.5.
[26]Criminal Code Act 1995 (Cth) s
101.6.
[27] The PJCIS did recommend that a separate hoax offence be adopted with a penalty
that reflects the less serious nature of hoax as compared to a threat of
terrorism: Parliamentary Joint Committee on Intelligence and Security, Review
of Security and Counter-terrorism Legislation,
December 2006, Recommendation
13.
[28]Criminal Code Act 1995 (Cth) see ss11.1, 11.4, 11.3.
[29] SLRC, Report of the Security Legislation Review Committee (2006),
4.
[30] SLRC, Report of the Security Legislation Review Committee (2006)
Recommendation 9.
[31] SLRC, Report of the Security Legislation Review Committee (2006)
Recommendation 3-4.
[32]Criminal Code Act 1995 (Cth) s
102.2.
[33]Criminal Code Act 1995 (Cth) s
102.3.
[34]Criminal Code Act 1995 (Cth) s
102.5.
[35]Criminal Code Act 1995 (Cth) s
102.6.
[36]Criminal
Code Act 1995
(Cth) ss 103.1 and 103.2. See also SLRC, Report of the
Security Legislation Review Committee
(2006) Recommendation
13.
[37]Criminal Code Act 1995 (Cth) s
102.7.
[38]Criminal Code Act 1995 (Cth) s
102.8.
[39] SLRC, Report of the Security Legislation Review Committee (2006), 5,
Recommendation 15; A senate review committee was also unpersuaded that the
offence was ‘need[ed] in the in the first place, given the already wide
ambit of terrorism offences under current law in Australia, the breadth of the
definition of ‘terrorist organisation’ contained in the Criminal
Code, and other existing laws such as the law of conspiracy and accessory
liability’. This committee also expressed apprehension about the tendency
towards ‘legislative overreach’ in relation to counter-terrorism
measures in Australia: see Legal and Constitutional Legislation Committee, Provisions of the Anti-terrorism Bill (No. 2) 2004, August 2004,
[3.113]
[40] See, for e.g., HREOC’s submission to the Clarke Inquiry on the Case of Dr
Mohamed Haneef, May
2008.
[41]Criminal Code Act 1995 (Cth) s.
80.2(1)
[42]Criminal
Code Act 1995
(Cth) s
80.2(4)
[43]Criminal Code Act 1995 (Cth)
s.80.2(5)
[44]Criminal Code Act 1995 (Cth) s
80.2(7)
[45]Criminal Code Act 1995 (Cth) s
80.2(8)
[46] Australian Law Reform Commission, Fighting Words: A Review of Sedition Laws
in Australia,
Report 104, July
2006.
[47]See
further Bronwen Jaggers, Anti-terrorism control orders in Australia and the
United Kingdom: a comparison’, Australian Parliamentary Library
Research Paper
, 29 April 2008, no. 28, 2007–08, ISSN 1834-9854.
[48]Crimes Act 1914 (Cth) s 23CA(1).
[49]Crimes Act 1914 (Cth) s 23CA(8).
[50] Haneef  v Minister for Immigration and Citizenship [2007] FCA 1273 (21
August
2007).
[51]Minister for Immigration & Citizenship v Haneef [2007] FCAFC 203 (21
December
2007)
[52] Special Rapporteur on the Promotion and Protection of Human Rights while
Countering Terrorism, Australia: Study on Human Rights Compliance while
Countering Terrorism,
UN Doc A/HRC/4/26/Add.3 (2006),
[34].
[53] Special Rapporteur on the Promotion and Protection of Human Rights while
Countering Terrorism, Australia: Study on Human Rights Compliance while
Countering Terrorism,
UN Doc A/HRC/4/26/Add.3 (2006),
[30].
[54] The Bill was reviewed by both the Parliamentary Joint Committee on ASIO ASIS and
DSD and the Senate Committee on Legal and Constitutional Affairs.
[55] The Hon Sir Gerard Brennan, AC, KBE, ‘The Law and Justice Address’,
2007 Justice Awards Parliament House, Sydney 31 October 2007.
[56] Special Rapporteur on the Promotion and Protection of Human Rights while
Countering Terrorism, Australia: Study on Human Rights Compliance while
Countering Terrorism,
UN Doc A/HRC/4/26/Add.3 (2006),
[47].
[57] Hon Michael McHugh AC QC, ‘Terrorism Legislation and the
Constitution’ (2006) 28 Australian Bar Review 117.
[58] [2006] VSCA 165 (18 August
2006).
[59] Special Rapporteur on the Promotion and Protection of Human Rights while
Countering Terrorism, Australia: Study on Human Rights Compliance while
Countering Terrorism,
UN Doc A/HRC/4/26/Add.3 (2006),
[38].
[60] [2007] HCA
33
[61]Hamdan v Rumsfeld, 126 S.Ct 2749
(2006).
[62] Jabbour v Hicks [2008] FMCA 178 (19 February
2008)
[63] SLRC, Report of the Security Legislation Review Committee (2006)
[5.2].
[64] 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: (1)
formal procedures for ensuring compatibility with human rights improved
transparency and parliamentary accountability; (2) the dialogue between the
judiciary and the parliament led to laws and policies which are inconsistent
with human rights being changed; and (3) public authorities were more likely to
behave in conformity with human rights. See further the United Kingdom
Department for Constitutional Affairs, Review of the Implementation of the
Human Rights Act
(2006) [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.
[65] See Terrorism Act 2000 (UK) s 126; Prevention of Terrorism Act 2005 (UK) ss 14
(3).
[66] Parliamentary Joint Committee on Intelligence and Security, Review of Security
and Counter Terrorism Legislation, December 2006, Canberra, [3.3],
[3.5].