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SUBMISSION to the Parliamentary Joint Committee

Legal Legal
Friday 14 December, 2012

SUBMISSION TO THE PARLIAMENTARY

JOINT COMMITTEE ON ASIO, ASIS AND DSD

Introduction

1. The Human Rights

and Equal Opportunity Commission ("HREOC") is established by

the Human Rights and Equal Opportunity Commission Act 1986. It

is Australia's pre-eminent body for the protection of human rights.

2. HREOC's powers

are set out at s 11 of the Human Rights and Equal Opportunity Commission

Act 1986 ("HREOC Act") and include the power to promote

an understanding and acceptance, and the public discussion of human rights

in Australia. [1]

The Terrorism Bills

3. In February and

March 2002 the Government introduced a "suite" of terrorism

bills following the terrorist attacks in the USA of September 11, 2001.

Those bills are as follows:

  • Security Legislation

    Amendment (Terrorism) Bill 2002 [No 2];

  • Suppression

    of the Financing of Terrorism Bill 2002;

  • Criminal Code

    Amendment (Suppression of Terrorist Bombings) Bill 2002;

  • Border Security

    Legislation Amendment Bill 2002;

  • Telecommunications

    Interception Legislation Amendment Bill 2002;

  • Criminal Code

    Amendment (Espionage and Related Offences) Bill 2002; and

  • Australian

    Security Intelligence Organisation Legislation Amendment (Terrorism)

    Bill 2002

    ("the ASIO Bill").

4. All of those bills,

save for the ASIO Bill, were referred to the Senate Legal and Constitutional

Legislation Committee. The ASIO Bill was referred by the House of Representatives

to the Parliamentary Joint Committee on ASIO, ASIS and DSD. The Senate

Committee published its two reports into the terrorism bills tabled on

8 and 10 May 2002. The report tabled on 10 May deals only with the Criminal

Code Amendment (Espionage and Related Offences) Bill 2002 whereas

the report of the 8 May 2002 concerns the earlier bills.

5. HREOC's overwhelming

concern is to ensure that the new terrorism laws do not, of themselves,

breach human rights standards and do not allow for the breach of human

rights standards. The human rights standards which HREOC wishes to apply

to the terrorism bills are contained in the following Conventions:

  • International

    Covenant on Civil and Political Rights [2] ("ICCPR");

  • The Convention

    on the Rights of the Child [3] ("CROC");

    and

  • The Convention

    Against Torture ("CAT").

6. Australia has

acceded to each of the above conventions and they are binding upon it.

The first two international instruments have been incorporated into Australian

domestic law. Each of the three instruments has its own enforcement mechanism

in international law to which Australia, having acceded to the instrument

concerned, is subject.

Terrorism Offences

7. The ASIO Bill

builds on the introduction of a new category of offences, known as "terrorism

offences", which it is proposed be inserted as Part 5.3 of the Criminal

Code Act 1995. The new Part 5.3 of the Criminal Code is contained

in the Security Legislation Amendment (Terrorism) Bill 2002 [No.

2].

8. The new offences

include:

  • Terrorist acts

    - where in order to advance "a political, religious or ideological

    cause" serious harm is done to a person, or serious damage is done

    to property, or a person's life is endangered, or a serious risk to

    the health or safety of the public is created, or there is serious disruption

    to an electronic system for information, telecommunications, finance

    or serious disruption to systems for government services, public utilities

    or transport;

  • Providing or receiving

    training connected with terrorist acts;

  • Directing organisations

    concerned with terrorist acts;

  • Possessing things

    connected with terrorist acts;

  • Collecting or

    making documents connected with terrorist acts; and

  • Acts done in

    preparation or planning of terrorist acts.

9. In addition there

is provision for the Minister (proposed to be the Attorney-General) to

proscribe organisations. Certain types of involvement with a proscribed

organisation are offences:

  • Directing the

    activities of a proscribed organisation;

  • Receiving funds

    for or making funds available to a proscribed organisation;

  • Membership of

    a proscribed organisation;

  • Provision of

    training or training with a proscribed organisation; and

  • Assisting a proscribed

    organisation.

Summary of the ASIO Bill

10. The ASIO Bill

provides a mechanism for the gathering of intelligence in relation to

terrorist offences. That mechanism is the use of a warrant to arrest or

bring a person before a prescribed authority and compel them to answer

questions.

11. The ASIO Bill

inserts "terrorism offence", as defined in Part 5.3 of the Criminal

Code, into the definition of "politically motivated violence"

in s4 of the Australian Security Intelligence Organisation Act 1979

("the ASIO Act").

12. To gain a warrant

the Director-General of ASIO must approach the Minister for his or her

consent to such a warrant: s34C(1). To consent the Minister must be satisfied,

"that there

are reasonable grounds for believing that issuing the warrant to be

requested will substantially assist the collection of intelligence that

is important in relation to a terrorism offence." (s 34C(3)(a))

13. A warrant may

be for the person to attend before a prescribed authority or for the arrest

and detention of the person: s34D(2). If the warrant is for an arrest

then the Minister must be satisfied that there are reasonable grounds

for believing that if the person is not immediately arrested and detained

he or she may alert a person involved in a terrorism offence, may not

appear before a prescribed authority or may destroy or damage a thing

required under the warrant to be produced: s34C(3)(c).

14. After the Minister has consented the Director-General must approach

a prescribed authority for a warrant to be issued: s34C(4). Prescribed

authorities include Federal Magistrates and certain members of the Administrative

Appeals Tribunal: s34B(1)

15. Each warrant

issued under the new Part III will,

"authorise

[ASIO] subject to any restrictions or conditions, to question

the person before a prescribed authority by requesting the person to

do either or both of the following:

(i) give information

that is or may be relevant to intelligence that is important in relation

to a terrorism offence;

(ii) produce

records or things that may be relevant to intelligence that is important

in relation to a terrorism offence." (s34D(5)(a))

16. Each warrant

may only be for a 48 hour period (s34D(2)(b)(i)) but there is no restriction

on the further grant of warrants of detention. That is, once a person

is in custody the Director-General may continue to apply for an unlimited

number of warrants without the person first being released.

17. Questioning of

a person the subject of a warrant is by officers of ASIO and must occur

before a prescribed authority: s34D(2)(b)(i) and s34D(5)(a).

18. The person the

subject of the warrant,

"... must

not fail to give any information requested in accordance with the warrant."

A failure to give

such information is an offence that carries a penalty of 5 years imprisonment:

s34G(3).

19. A person detained

must not contact "anyone at any time" while detained: s34F(8).

The only exceptions to the rule are those persons specified in the warrant,

and the Inspector-General of Intelligence and Security or the Commonwealth

Ombudsman in order to make a complaint. There is no right to contact a

lawyer or family member unless such contact is specifically allowed by

the warrant. The inclusion of such persons in the warrant is in the discretion

of the prescribed authority who issues the warrant: s34F(1).

20. During questioning

a person cannot decline to answer a question on the grounds that it may

incriminate him or her: s34G(8)(b). Any answers given are inadmissible

in criminal proceedings against the person except for terrorism

offences or offences against s34G.

21. There are a number

of other notable aspects to the proposed warrants regime:

  • The warrant powers

    are equally applicable to children as they are to adults;

  • It is an offence

    to give false or misleading statements while being questioned, carrying

    a penalty of 5 years;

  • There is no provision

    requiring officials to alert the next of kin of the person subject to

    the warrant following his or her arrest and/or detention;

  • There is no provision

    requiring the detention to be reviewed by a judicial officer nor the

    ability of the person to be released on bail;

  • A reverse onus

    applies in relation to defences of not having relevant information or

    not possessing relevant records or things;

  • There is a general

    protection against "cruel, inhuman or degrading treatment"

    while the subject of a warrant;

  • There is the power

    to conduct an ordinary or strip search of a person; and

  • There is no power

    to strip search a child under 10 years old but a person between the

    ages of 10-18 may be strip searched in the company of a parent or guardian.

National Security Concerns

- Striking a Balance

22. HREOC is concerned

that the ASIO Bill - as with the other terrorism bills - strikes an appropriate

balance between the protection of individual rights and national security.

That balance is inherent in human rights instruments such as the ICCPR.

It was uppermost in the minds of the drafters and has been revisited often

by the Human Rights Committee established under the ICCPR when hearing

communications alleging breaches of the Covenant.

23. The drafters

of the ICCPR clearly 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 or war. It set forth a procedure for the

derogation from such rights in Article 4 of the ICCPR. Article 4 provides

for derogation from human rights protections "in times of public

emergency which threatens the life of the nation". That power of

derogation is carefully circumscribed so as to avoid the arbitrary disregard

for human rights:

  • 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.

24. Certain articles

may not be derogated from whether in peacetime or war. Those articles

include Article 7 which prohibits torture or cruel, inhuman or degrading

punishment or treatment. Other articles which may not be derogated from

include the right to life (Article 6), guarantee against retrospective

criminality (Article 15) and freedom of thought, conscience and religion

(Article 18).

25. Where a State

has not derogated from its obligations under the ICCPR it may still take

steps to protect national security in times of public emergency. Where

there is express or implied flexibility allowed for in the application

of a human right the Human Rights Committee will take into account the

fact that a public emergency exists. This flexibility is sometimes called

the margin of appreciation. However, that flexibility has limits and the

ICCPR is drafted so that after a particular point a State is expected

to utilise the derogation procedure extant in Article 4.

26. The balance between

human rights and security concerns has been much litigated as part of

UK and Irish government attempts to combat IRA terrorism. Cases such as

Lawless v Ireland [4] , Brogan v UK [5]

, Ireland v UK [6] and Brannigan v McBride

v UK [7] have tested the human rights implications

of anti-terrorist laws since 1961. Although those cases were before the

European Court of Human Rights there is effectively little or no difference

between the approach that court takes to human rights and that of the

Human Rights Committee.

27. A number of safeguards

have been put forward by the Human Rights Committee (and the European

Court of Human Rights) to minimise the impact of incursions on human rights

by public security issues, amongst other things. Those safeguards include:

  • The restrictions

    must be prescribed by law;

  • They must be

    necessary in a democratic society;

  • They must accord

    with the principle of proportionality (between the right to be protected

    and the general interest);

  • The restriction

    should not limit the human right more than is necessary to achieve the

    aim;

  • The means chosen

    should be appropriate to achieve the aim.

28. The United Nations

High Commissioner for Human Rights on 27 February 2002 issued a statement

of criteria for protecting human rights while States implement measures

against terrorism. The statement was issued in light of UN Security

Resolution 1373 (28 September 2001) which calls on States to bring

to justice those involved in terrorist acts and to establish such acts

as serious criminal offences. The criteria set out in the statement by

the UN High Commissioner replicate many of the safeguards for the protection

of human rights set out above, and require that any restrictions for public

security purposes shall be:

  • Prescribed by

    law;

  • Necessary for

    public security or public order;

  • Not impair the

    essence of the right;

  • Are necessary

    in a democratic society;

  • Conform to the

    principle of proportionality;

  • Appropriate to

    achieve their aim;

  • The least intrusive

    means to achieve the aim of the measures;

  • Respect the principle

    of non-discrimination; and

  • Not be arbitrarily

    applied.

29. It is with these

principles in mind that HREOC provides the following comments on the ASIO

Bill.

Detention for Questioning

as Arbitrary Detention

30. Article 9 of

the ICCPR provides clear protection for the right to liberty. It is as

follows:

"1. Everyone

has the right to liberty and security of person. No one shall be subjected

to arbitrary arrest or detention. No one shall be deprived of his liberty

except on such grounds and in accordance with such procedure as are

established by law.

2. Anyone who

is arrested shall be informed, at the time of arrest, of the reasons

for his arrest and shall be promptly informed of any charges against

him.

3. Anyone arrested

or detained on a criminal charge shall be brought promptly before a

judge or other officer authorized by law to exercise judicial power

and shall be entitled to trial within a reasonable time or to release.

It shall not be the general rule that persons awaiting trial shall be

detained in custody, but release may be subject to guarantees to appear

for trial, at any other stage of the judicial proceedings, and, should

occasion arise, for execution of the judgment.

4. Anyone who

is deprived of his liberty by arrest or detention shall be entitled

to take proceedings before a court, in order that that court may decide

without delay on the lawfulness of his detention and order his release

if the detention is not lawful.

5. Anyone who

has been the victim of unlawful arrest or detention shall have an enforceable

right to compensation."

31. Article 9(1)

prohibits arbitrary arrest or detention and applies to all forms of detention

whether they be criminal civil, immigration, health or vagrancy related

[8]. The term arbitrary has been interpreted as requiring

more than mere legality.

32. Arbitrary arrest

was considered in Van Alphen v Netherlands (305/88) where the Human

Rights Committee held that the term should not be restricted to legality

but includes "inappropriateness, injustice and lack of predictability".[9]

Where, for example, a person has been held on remand then not only must

the detention be legal but the detention must be reasonable in all the

circumstances. [10] A distinguished commentator on the

ICCPR has commented that arbitrariness includes injustice, unpredictability,

unreasonableness, capriciousness and lack or proportionality. [11]

33. HREOC notes first

and foremost that the warrant provisions sought to be implemented by the

ASIO Bill are not intended to apply to persons suspected of committing

a terrorist offence or having committed such an offence. The provisions

are aimed solely at those who have information that will "substantially

assist the collection of intelligence" and which is "important

in relation to a terrorism offence" (s 34C(3)(c)).

34. In Australian

law there is no equivalent provision in relation to criminal law even

of the most serious kind. There are many examples of persons being able

to be summonsed to appear before a commission of inquiry and required

to answer questions.[12] Any powers of arrest are exercisable

generally only on a failure to appear on such a summons.

35. The issuing of

warrants for the arrest of persons solely for the provision of information

is in HREOC's view contrary to the prohibition on arbitrary arrest under

Article 9(1) of the ICCPR. There are a number of reasons for this. First,

the provisions appear to be based on an assumption that there were, are

or are likely to be terrorist groups operating in Australia. No publicly

available evidence of this has been available except in the broadest sense.

Where similar anti-terrorist measures have been permitted to infringe

human rights with respect to the IRA this has been on the basis that there

has been a "far reaching and acute danger" presented by a "massive

wave of violence and intimidation". [13] The UK

anti-terrorist powers were concerned with continuing campaigns of terror.

HREOC is concerned that in the absence of actual terrorist acts in Australia

special care should be taken before significant inroads are made into

human rights. Secondly, it is not clear that a lesser way in which to

undertake the questioning - for example by relying on a summons under

s34D(2)(a) - is not sufficient for the purpose of gathering information.

36. Thirdly, the

information sought from persons subject to a warrant may be obtained after

the persons suspected of having committed a terrorist offence have been

arrested, avoiding arrest of a person solely to gain information from

that person. In the absence of similar powers for serious criminal offences,

HREOC does not agree that arrest is warranted in order to gain information.

37. HREOC's position

is bolstered by the width of the proposed definition of "terrorism

offence" in the Criminal Code. Many objections have been made

that the term includes protests made by political and industrial organisations

especially where there may have been destruction of property. The warrants

regime would allow for the arrest and detention of persons who had information

with regard to such offences. Two likely groups of persons in Australia

exposed to such warrants would be lawyers and journalists. For example,

a "terrorism offence" could include the recent destruction of

fencing at Woomera by protesters. Any journalist who spoke to a person

involved in such an offence or any lawyer approached for advice could

potentially be the subject of a warrant under the ASIO Bill.

38. A number of other

elements of the warrants regime may fall foul of this prohibition and

are set out below.

Right to Silence

39. Article 14(3)

of the ICCPR is in the following terms:

"(3) In

the determination of any criminal charge against him, everyone shall

be entitled to the following minimum guarantees, in full equality;

...

(g) Not to

be compelled to testify against himself or to confess guilt."

40. Section 34G(9)

states that any information provided by a person subject to a warrant

under compulsion may be used in the prosecution of a terrorism offence

or an offence under s38G (such as failure to provide relevant information).

This is a complete abrogation of the right to silence with respect to

those offences.

41. It is well accepted

by human rights authorities that one of the principal reasons for the

right to silence is to prevent abuse by authorities in compelling detained

persons to answer questions. Where there is a right to compel a witness

to answer questions there are obvious dangers of such abuse. General Comment

13 of the Human Rights Committee with respect to Article 14(3)(g) is in

the following terms:

"In order

to compel the accused to confess or to testify against himself, frequently

methods which violate [the provisions of Article 7 [14]

and 10(1)] are used. The law should require that evidence provided by

means of such methods or any other form of compulsion is wholly unacceptable."

[15]

42. The ASIO Bill

requires that questioning only occur before a prescribed authority. However,

the remainder of the detention is not in the presence of the prescribed

authority.

43. HREOC is concerned

that there is an opportunity for a breach of Article 10 to occur notwithstanding

the supposed protection against violations of Articles 7 and 10(1) contained

in s34J. Such a fear is exacerbated by the person being held incommunicado.

The warrants regime does not mandate access to a lawyer or to next of

kin. The person the subject of the warrant is dependent on the prescribed

authority exercising his or her discretion to allow such access prior

to the issue of the warrant.

44. Further, the

supposed protection in s34J is not the subject of criminal penalty. Enforcement

of any such protection would be only available by way of injunction achieved

in a court of law. Any such enforcement would require communication with

a lawyer, such a communication not being allowed unless specified in the

warrant. It is acknowledged that a complaint could be made of a breach

of s34J to the Inspector-General of Intelligence and Security or the Commonwealth

Ombudsman.

Incommunicado Detention

45. HREOC is particularly

concerned at persons being held incommunicado under the warrants regime

in the ASIO Bill. There are three groups of persons which should be given

access to persons subject to warrant: family, a lawyer and a doctor. This

accords with the Human Rights Committee's General Comment on Article 7.

46. The provisions

of the ASIO Bill are drafted so that the primary position in relation

to persons who have been taken into custody or detained is that they are,

"... not

permitted to contact, and may be prevented from contacting, anyone at

any time while in custody or detention." (s34F(8))

47. There is no presumption

that contact should be allowed with any of the three groups of persons

mentioned. Indeed, the reverse is the case. The prescribed authority must

act to include such persons as a category. There is no indication as to

when such a power should be exercised or on what basis.

48. HREOC is particularly

concerned that a person subject to a warrant as proposed in the ASIO Bill

may effectively "disappear" as a result of execution of a warrant.

As there is no limit to the number of such warrants and the effective

extension of the initial 48 hour period such a period of disappearance

may be considerable. The effect of such a disappearance on the next of

kin is likely to be considerable and it is this effect which exacerbates

the lack of proportionality with respect to the power of incommunicado

detention. Accordingly, the incommunicado provisions constitute arbitrary

arrest contrary to Article 9(1).

49. Denial of access

to legal advice raises concern about a breach of Article 9(4). That paragraph

effectively provides for habeas corpus a right guaranteed in Australian

common law. That right is not explicitly removed by the ASIO Bill but

is effectively curtailed through the incommunicado provisions set out

at s 34F(8). If the person subject to the warrant wishes to challenge

the power of arrest and detention there is no mechanism by which such

an application could be made if the person does not have access to his

or her lawyer or next of kin.

50. A person who

is mistakenly identified as someone with relevant information could be

held for 48 hours without the possibility of challenging the arrest and

detention. At present the ASIO Bill leaves the person's release to the

prescribed authority who has issued the warrant: s34F(1)(f) or the expiry

of the warrant. There is no automatic independent review by a court of

the detention.

51. HREOC is of the

opinion that where a person is held incommunicado that such detention

would be a breach of Article 9(4): see Berry v Jamaica (330/88).

Length of Detention

52. As mentioned

above there is no limit on the number of warrants that may be issued with

respect to a person subject to the warrants regime. Each warrant lasts

for a maximum of 48 hours but there is no bar to a further warrant being

issued while the current warrant is in operation. HREOC has two concerns:

the length of any detention before review by an independent judicial body;

and the length of any detention incommunicado.

53. A number of cases

have successfully challenged detentions where there have been significant

delays in bringing the person before a judicial officer. In Jijon v

Ecuador (277/88) the Human Rights Committee held that a delay of 5

days amounted to a breach of Article 9(3). Brogan v UK [16]

is a similar case fought before the European Court of Human Rights where

a delay of 4 days and 6 hours was held to be a breach of the Article 9

equivalent of the European Convention on Human Rights (Article

5). Importantly, in Brogan v UK the arrest and detention was of

an IRA suspect under anti-terrorism laws. Such is the importance of the

right to be brought promptly before a judicial officer that the court

was unwilling to agree that terrorism offences necessitated a longer period.

[17]

54. Although both

those cases involved criminal charges there is no reason to believe that

the same principle applies to non-criminal detention pursuant to Article

9(1). The open-ended nature of detention under such an ASIO Bill warrant

causes HREOC some considerable concern. Consideration should be given

to the provisions in s23C of the Crimes Act 1914 (Cth) which allow

for four hours of detention for the purpose of questioning before a person

has to be brought before a judicial officer. There are safeguards to prevent

inappropriate extensions.

55. Detention incommunicado

has been the subject of communications under Article 7 of the ICCPR [18].

However, the shortest breach recorded for a violation of Article 7 has

been 8 months [19]. Allied to such cases is the lesser

standard provided in Article 10(1). In Arzuaga Gilboa v Uruguay

(147/83) holding a person in incommunicado detention for 15 days was held

to be a violation of Article 10(1). Detention for lesser periods has not

been tested to date. [20]

Application of the Amendments

to Children

56. The final area

of impact, and perhaps the most serious, that HREOC wishes to raise with

the Committee is the impact of the ASIO Bill on children. It is not without

some significant surprise that HREOC notes the ASIO Bill makes virtually

no allowance or exemption for children.

57. There is no restraint

on the following provisions with respect to children:

  • Arrest,
  • Detention;
  • Period of detention;
  • Access to next

    of kin, lawyers or doctors; and

  • Provision of

    information by compulsion.

58. It is now well

established that the Convention on the Rights of the Child ("CROC")

is the pre-eminent human rights instrument guaranteeing and protecting

the rights of children. Australia has acceded to the Convention and in

1993 the Commonwealth Attorney-General moved under s47 of the HREOC Act

to have it declared an international instrument relating to human rights

and freedoms.

59. It should be

noted that the human rights set out in the ICCPR apply equally to adults

and children. However, the Human Rights Committee in its General Comment

No 20 recognised that children, in particular, are to be protected from

torture and cruel, inhuman and degrading punishment or treatment. [21]

60. Article 37 of

CROC has particular resonance for the Committee's consideration of the

ASIO Bill:

"States

Parties shall ensure that:

(a) No child

shall be subjected to torture or other cruel, inhuman or degrading treatment

or punishment. Neither capital punishment nor life imprisonment without

possibility of release shall be imposed for offences committed by persons

below eighteen years of age;

(b) No child

shall be deprived of his or her liberty unlawfully or arbitrarily. The

arrest, detention or imprisonment of a child shall be in conformity

with the law and shall be used only as a measure of last resort and

for the shortest appropriate period of time;

(c) Every child

deprived of liberty shall be treated with humanity and respect for the

inherent dignity of the human person, and in a manner which takes into

account the needs of persons of his or her age. In particular, every

child deprived of liberty shall be separated from adults unless it is

considered in the child's best interest not to do so and shall have

the right to maintain contact with his or her family through correspondence

and visits, save in exceptional circumstances;

(d) Every child

deprived of his or her liberty shall have the right to prompt access

to legal and other appropriate assistance, as well as the right to challenge

the legality of the deprivation of his or her liberty before a court

or other competent, independent and impartial authority, and to a prompt

decision on any such action."

61. Article 37 replicates

many of the rights and freedoms which are set out in the ICCPR. However

there are some important additional rights which recognise the particular

vulnerability of children.

62. Article 37(b):

Arrest and detention shall be used as a measure of last resort and for

the shortest available time. There are no specific safeguards with

respect to children and the operation of warrants of arrest and detention

in the ASIO Bill. A child of any age could be subject to a warrant of

arrest and detention where, for example, they had information in relation

to a terrorism offence allegedly committed by his or her parent. There

is no requirement that the Director-General inform the Minister that the

warrant is with respect to a child. There are no limits on the number

of warrants and hence the time spent in detention by a child the subject

of those warrants.

63. Article 37(c):

Every child deprived of liberty shall be treated with humanity and respect

for the inherent dignity of the human person, and in a manner which takes

into account the needs of persons of his or her age. The only allowances

made for children in the ASIO Bill are in the case of strip searches.

A parent or guardian is required to be present while a child of the age

of 10-18 years is strip searched. Strip searches for those under 10 years

are prohibited. It is noted with concern that such a power is available

even though the child is not suspected of having committed a terrorism

(or any other) offence. HREOC has drawn attention to its concerns that

detention for the purpose of questioning might breach Article 9(1) of

the ICCPR on the basis that such detention is "arbitrary". However,

when the weighing exercise is conducted with respect to children then

Article 37 of CROC appears to tip the balance towards the protection of

children. That is, even though the task is to weigh national security

against a human right, the rights of children are to be given added emphasis.

64. Article 37(c):

Every child ... shall have the right to maintain contact with his or her

family through correspondence and visits, save in exceptional circumstances.

There are no guarantees included in the ASIO Bill that such contact would

occur with a child in detention. Indeed, as mentioned above, the ASIO

Bill is drafted so that such contact is only to be allowed as an exception.

Such contact could only occur if the warrant specified family (or legal

or medical assistance) as an allowable category under the warrant or the

prescribed authority directed such contact. The warrant regime in the

ASIO Bill fails to safeguard a child's right to contact with a parent

under Article 37(c). Needless to say there is no provision for a parent

to stay with a child while in detention.

65. Although not

the subject of a specific right in CROC it is also of deep concern that

a child may be questioned alone and not in the company of a parent or

guardian. This is a most basic part of the Australian criminal justice

system as it applies to children.

Conclusion

66. HREOC is deeply

concerned that there are a number of provisions of the ASIO Bill which

breach human rights contained in the ICCPR notwithstanding that

they are for the purposes of national security. The balance between implementing

measures for the prevention of terrorism and the protection of human rights

has been the subject of much thought and jurisprudence in the Western

world, particularly in Europe. That experience shows that when anti-terrorist

measures are proposed that may infringe human rights then exquisite care

should be taken in framing and implementing those measures.

67. It is apparent

from the analysis of the ASIO Bill set out above that exquisite care has

not been taken with respect to the drafting of the ASIO Bill. In fact

the powers in the ASIO Bill are considerably wider than one would consider

were necessary and appropriate for the gathering of intelligence with

respect to a terrorist attack that may occur in Australia.

68. HREOC considers

that the ASIO Bill, were it to be passed in its current form, would allow

for breaches of Articles 9(1), 9(4), 10 and 14(3) of the ICCPR.

69. HREOC notes with

further deep concern that the ASIO Bill, while including children in its

powers, provides no appropriate safeguards for children. Following Australia's

accession to CROC and a long history of providing appropriate measures

in the criminal justice system it is to be deplored that safeguards for

children have all but been ignored.

70. HREOC considers

that the ASIO Bill, were it to be passed in its current form, would allow

for breaches of Articles 37(b), 37(c), 37(d) and 40(2)(b)(iv) of CROC.

71. HREOC considers

that the ASIO Bill needs to be substantially re-drafted so that, at the

very least, it complies with the ICCPR and CROC. The potential breaches

outlined in the submissions above are simply unacceptable and disproportionate

to the end which the ASIO Bill aims to achieve.

72. HREOC considers

that, if the ASIO Bill is passed in its current form, provision must be

made in the Bill for an independent review of the operation of the legislation

within two years of the commencement of the legislation. A sunset clause

ought also be included in the ASIO Bill so that the legislation will expire

2 years after its commencement without a further Act of Parliament. This

would encourage systematic review of the necessity for, and of the scope

of, the legislation.

Dr Sev Ozdowski

OAM
Human Rights Commissioner

For and on behalf of the Human Rights and Equal Opportunity Commission

Sydney, 23 May 2002


1. Section

11(1)(g)

2. Schedule 2 to the HREOC Act.

3. CROC is the subject of a declaration under s 47 of

the HREOC Act that it is an international instrument relating to human

rights and fundamental freedoms for the purposes of that Act.

4. Publication of the European Court of Human Rights,

Series A 3 (1961)

5. Series A 145-B

6. Series A 25

7. Series A 258-B

8. Human Rights Committee General Comment No 8 par 1

9. At par 5.8

10. Ibid.

11. Nowak, UN Covenant on Civil and Political Rights

- CCPR Commentary, 1993, p 172.

12. See, for example, ss35 and 37 of the Independent

Commission Against Corruption Act 1988 (NSW)

13. Ireland v UK Series A 25 (1978) para 212.

14. The prohibition of torture and cruel, inhuman or

degrading treatment.

15. Par 14.

16. 29 November 1988, Series A Vol 145-B

17. At pars 55-62.

18. See also the protection provided in the Convention

Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.

19. Shaw v Jamaica 704/96

20. Joseph et al The ICCPR: Cases Commentary and Materials

2000 OUP p190

21. At para 5.

Last

updated 26 November 2002.