HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

SUBMISSION TO THE SECURITY LEGISLATION REVIEW

January 2006

1. INTRODUCTION

1.1 The Human Rights and Equal Opportunity Commission ('HREOC') is established by the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ('HREOCAct'). It is Australia's national human rights institution.

1.2 Its functions are set out in section 11(1) of the HREOC Act and include the power to promote an understanding and acceptance, and the public discussion, of human rights in Australia.

1.3 In this submission, HREOC limits itself to commenting on the human rights issues arising from the Security Legislation Amendment (Terrorism) Act 2002 (Cth) and the Criminal Code Amendment (Terrorism) Act 2003 (Cth), which now form Part 5.3 of the Criminal Code 1995 (Cth) (the 'CriminalCode').

1.4 In raising those issues, HREOC asks this Review Committee to accept that international human rights law is not an optional extra during times of concern about international terrorism. Such an approach implies that human rights are somehow antithetical to issues of national security, necessitating a compromise or trade off. This approach also ignores the fact that international human rights law already strikes a balance between security interests and rights considered to be fundamental to the person. International Human Rights Law allows for protective actions to be taken by states, but demands that those actions remain within carefully crafted limits - most notably proportionality (which is discussed further below).

1.5 Concerns about the heightened risks of domestic terrorist attacks are plainly legitimate and require innovative measures on the part of all responsible states, including Australia. However, as the United Nations Secretary General has stated, it is crucial that those measures are consistent with international human rights law to ensure that in an attempt to safeguard our society we do not give away the very rights that are essential to the maintenance of the rule of law, one of the fundamental principles of a functioning democracy.1

Summary of HREOC Submissions

1.6 In summary HREOC submits that, for Australia to better comply with its international human rights obligations:

  1. The process by which an organisation is proscribed as a terrorist organisation should be a judicial rather than executive process.
  2. In the event that a judicial proscription process is not adopted, the existing proscription provisions in the Criminal Code should be amended to:
    • include the factors required to be taken into account by the Attorney-General in determining whether to proscribe an organisation and whether to de-list an organisation, including specific criteria to be taken into account when determining whether to proscribe an organisation because it "advocates" terrorism;
    • amend paragraph (c) of the definition of "advocates" in section 102.1(1A) by requiring the praising of the doing of a terrorist act to be done in circumstances where there is a "substantial risk" that such praise might have the effect of leading a person to engage in a terrorist act, rather than just a "risk" that this will happen;
    • allow merits review of the Attorney-General's decision to proscribe an organisation be available under the Act; and
    • require the Parliamentary Joint Committee on ASIO, ASIS and DSD to undertake a review of proposed listing regulations.
  3. In relation to the derivative offences in division of Part 5.3 of the Criminal Code upon the proscription of an organisation
    • section 102.3 should be amended to limit the burden placed on the accused to an evidential burden;
    • the term 'support' in section 102.7 be circumscribed; and
    • section 102.8 should be repealed, or at a minimum, amended in line with the recommendations of the Senate Legal and Constitutional Committee's report to its inquiry into that provision

2. HUMAN RIGHTS COMMISSIONER'S ROLE IN THE PREPARATION OF HREOC'S SUBMISSION

2.1 As the Committee is aware, section 4 of the Security Legislation Amendment (Terrorism) Act 2002 (Cth) appoints the Human Rights Commissioner as a member of the Committee. Being a member of the Committee the Human Rights Commissioner has not participated in the preparation of HREOC's submission, and neither endorses nor rejects the views expressed by HREOC in this submission.

3. THE SECURITY LEGISLATION AMENDMENT ACT 2002 (CTH) AND CRIMINAL CODE AMENDMENT (TERRORISM) ACT 2003 (CTH)

3.1 The SecurityLegislation Amendment Act 2002 (Cth) and the subsequent Criminal Code Amendment (Terrorism) Act 2003 (Cth) inserted Part 5.3 (Terrorism) into the Criminal Code.

3.2 The Criminal Code Amendment (Terrorism) Act 2003 was enacted following the referral of power by the States2 and Territories3 to the Commonwealth. The Act re-enacted the provisions contained in the SecurityLegislation Amendment Act 2002 as well as provisions set out the constitutional basis of the terrorism provisions contained in Part 5.3 of the Criminal Code.

3.3 HREOC notes that 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). HREOC understands that those amendments will be considered by the Committee. HREOC has commented on those amendments as necessary.

4. OVERVIEW OF PART 5.3 OF THE CRIMINAL CODE

Terrorism offences

4.1 Section 100.1 sets out the definition of a "terrorist act", which flows into the other offences in Part 5.3, as follows:

terrorist act means an action or threat of action where:

  1. the action falls within subsection (2) and does not fall within subsection (2A); and
  2. the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and
  3. the action is done or the threat is made with the intention of:
    1. coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
    2. intimidating the public or a section of the public.
    (2) Action falls within this subsection if it:
  • (a) causes serious harm that is physical harm to a person; or
  • (b) causes serious damage to property; or
  • (ba) causes a person's death; or
  • (c) endangers a person's life, other than the life of the person taking the action; or
  • (d) creates a serious risk to the health or safety of the public or a section of the public; or
  • (e) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:
    1. an information system; or
    2. a telecommunications system; or
    3. a financial system; or
    4. a system used for the delivery of essential government services; or
    5. a system used for, or by, an essential public utility; or
    6. a system used for, or by, a transport system

(2A) Action falls within this subsection if it:

  • (a) is advocacy, protest, dissent or industrial action; and
  • (b) is not intended:
    1. to cause serious harm that is physical harm to a person; or
    2. to cause a person's death; or
    3. to endanger the life of a person, other than the person taking the action; or
    4. to create a serious risk to the health or safety of the public or a section of the public

(3) In this Division:

  • (a) a reference to any person or property is a reference to any person or property wherever situated, within or outside Australia; and
  • (b) a reference to the public includes a reference to the public of a country other than Australia.

4.2 The remainder of division 100 of Part 5.3 sets out the Constitutional basis for Part 5.3.

4.3 Part 5.3, division 101 contains the derivate offences flowing from the definition of a terrorist act. In summary (and without detailing qualifications and available defences):

  • section 101.1 makes it an offence punishable by life imprisonment to engage in a terrorist act;
  • section 101.2 makes it an offence punishable by imprisonment of up to 25 years to provide or receive training connected with the preparation for, the engagement of a person in or assistance in a terrorist act;
  • section 101.4 makes it an offence punishable by imprisonment of up to 15 years to possess a thing connected with the preparation for, the engagement of a person in or assistance in a terrorist act;
  • section 101.5 makes it an offence punishable by imprisonment of up to 15 years to collect or make documents connected with the preparation for, the engagement of a person in or assistance in a terrorist act; and
  • section 101.6 makes it an offence punishable by life imprisonment to do nay act in preparation for, or planning a terrorist act.

4.4 The division 101 offences apply even where a terrorist act does not occur, 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.4

The proscription regime

  • Section 102.1 of the Criminal Code establishes a regime whereby an organisation may be specified or proscribed by regulation as being a "terrorist organisation". Terrorist organisation is defined in s 102.1(1) as follows:

    terrorist organisation means:

    • (a) 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
    • (b) an organisation specified by the regulations for the purposes of this paragraph (see subsections (2), (3) and (4).

4.6 An organisation can be proscribed as a terrorist organisation (or 'terrorist listing regulation' made) where the Attorney-General is satisfied on reasonable grounds that the organisation proposed to be specified 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),5 or 'advocates' the doing of a terrorist act.6

4.7'Advocates' is defined in section 102.1(1A) as follows:7

(1A) In this Division, an organisation advocates the doing of a terrorist act if:

  • (a) the organisation directly or indirectly counsels or urges the doing of a terrorist act; or
  • (b) the organisation directly or indirectly provides instruction on the doing of a terrorist act; or
  • (c) the organisation directly or indirectly 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 age or any mental impairment (within the meaning of section 7.3) that the person might suffer) to engage in a terrorist act.

4.8 Where a terrorist organisation regulation is proposed to be made proscribing an organisation as a terrorist organisation, the Attorney-General must arrange for the Leader of the Opposition in the House of Representatives to be briefed in relation to the proposed regulation.8 The announcement must also be published on the internet and newspapers circulating in each State and Territory.9

4.9 Terrorist organisation regulations take effect in accordance with usual Parliamentary rules.

4.10 Terrorist organisation regulations may be reviewed by the Parliamentary Joint Committee on ASIO, ASIS and DSD, which may report its comments and recommendations to each House of Parliament.10 Section 102.1A(3) extends the disallowance period for listing regulations reviewed by the committee in certain circumstances. In the event listing regulations are not disallowed, they cease to have effect on the second anniversary of the day on which the regulation takes effect, unless earlier repealed11 or the organisation is re-listed.12

4.11 Consequent upon the proscription of an organisation as a terrorist organisation, it is an offence for a person to do or engage in the activities set out in sections 102.2 to 102.8 of the Criminal Code. In summary (and without detailing qualifications and available defences):

  • section 102.2 makes it an offence punishable by imprisonment of up to 25 years to direct the activities of a terrorist organisation;
  • section 102.3 makes it an offence punishable by imprisonment of up to 10 years to be a member of a terrorist organisation;
  • section 102.4 makes it an offence punishable by imprisonment of up to 25 years to recruit a person to join or participate in the activities of a terrorist organisation;
  • section 102.5 makes it an offence punishable by imprisonment of up to 25 years to provide training to or receive training from a terrorist organisation;
  • section 102.6 makes it an offence punishable by imprisonment of up to 25 years to receive funds from or make funds available to a terrorist organisation;
  • section 102.7 makes it an offence punishable by imprisonment of up to 25 years to 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);
  • section 102.8 makes it an offence punishable by imprisonment of up to 3 years to associate with a member or a person who directs or promotes the activities of a terrorist organisation which is intended to provide support to the organisation to expand or continue to exist.13

4.12 Under s 102.1(17) an individual or an organisation (including the proscribed organisation) may make an application to the Attorney-General to be de-listed on the grounds that there is no basis for the Minister to be satisfied that the listed 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 (whether or not a terrorist act has or will occur). Whilst the Attorney-General must consider the application, the Minister has absolute discretion as to the matters that he or she may consider in deciding whether to de-list an organisation.14

4.13 An applicant whose application for de-listing has been refused may apply for judicial review of the Minister's decision under the Administrative Decisions (Judicial Review) Act 1975 (Cth) (the 'ADJR Act'). HREOC notes that review under the ADJR is not a merits review but a review as to whether the decision to specify an organisation was made in accordance with law.

5. PART 5.3 OF THE CRIMINAL CODE RESTRICTS FREEDOM OF EXPRESSION AND ASSOCIATION GUARANTEED BY THE ICCPR

5.1 The criminal sanctions in division 101 and division 102 of the Criminal Code consequential on the proscription of an organisation as a terrorist organisation give rise to a substantial interference with the right to freedom of expression under article 19 of the International Covenant on Civil and Political Rights (the 'ICCPR') and the right to freedom of association under article 22 of the ICCPR.

5.2 Article 19 relevantly provides:

  1. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
  2. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
    1. For respect of the rights or reputations of others;
    2. For the protection of national security or of public order (ordrepublic), or of public health or morals

5.3 Article 22 relevantly provides:

  1. Every one shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.
  2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society, in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

International human rights law safeguards: restrictions on rights must be prescribed by law and proportionate to achieve a legitimate end

5.4 However, neither the right to freedom of expression nor the right to freedom of association are absolute. Those rights may be limited to the extent that the limitations are provided or prescribed by law and proportionate and necessary to achieve a legitimate end.

When is a limitation provided or prescribed by law?

5.5 The United Nations Human Rights Committee (the 'HRC') has stated that the expression "provided by law" in the context of article 19(3) and "prescribed by law" in the context of article 22(2) requires that the limiting measure must be sufficiently delineated in an accessible law.15 Laws should not be so vague as to permit too much discretion and unpredictability in its implementation.16 In the context of permissible restrictions on the right to freedom of movement the HRC has stated that:

[L]aws authorizing the application of restrictions should use precise criteria and may not confer unfettered discretion on those charged with their execution.17 (Emphasis added)

5.6 A provision conferring an unfettered discretion on the executive may therefore constitute an arbitrary interference with ICCPR rights. Such a restriction will not constitute a restriction provided or prescribed by law.18

5.7 This is illustrated by the HRC case of Pinkney v Canada.19 In that case, a remand prisoner complained of a violation to a right to his privacy (article 17 of the ICCPR). The relevant regulations provided that:

Every letter to or from a prisoner shall be read by the Warden or responsible officer deputed by him for the purpose, it is within the discretion of the Warden to stop or censor any letter, or any part of the letter on the ground that its contents are objectionable or that the letter is of excessive length.

In relation to that regulation the HRC stated that:

A legislative provision in the very general terms of this section did not, in the opinion of the Committee, in itself provide satisfactory legal safeguards against arbitrary application.20

The potential arbitrariness of the regulation was remedied by a subsequent amendment to the regulation circumscribing the reasons for censoring mail to where it posed a threat to the staff or the operation of the prison.21

5.8 The European Court of Human Rights has held that the expression "prescribed by law" as it appears in the European Convention on Human Rights22 (the 'ECHR') requires that the law:

be accessible to the persons concerned and formulated with sufficient precision to enable them--if need be, with appropriate advice--to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail and to regulate their conduct.23

5.9 Like the HRC the European Court of Human Rights has also held that legislative provisions giving the executive absolute discretion will not constitute a limitation prescribed by law where it leads to an arbitrary interference with ECHR rights. For instance, in Hasan and Chaush v Bulgaria24 the court found that the interference of the applicants' freedom of religion in that case was not prescribed by law:

in that it was arbitrary and was based on legal provisions which allowed unfettered discretion to the executive and did not meet the required standards of clarity and foreseeability.25

The court stated in that case that:

For a domestic law to meet these requirements [ie that it is prescribed by law] it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the [ECHR]. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the [ECHR], for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on competent authorities and the manner of its exercise.

The Court notes that in the present case the relevant law does not provide for any substantive criteria on the basis of which the Council of Ministers and Directorate of Religious Dominations register religious denominations and changes of their leadership in a situation of internal divisions and conflicting claims for legitimacy. Moreover there are no procedural safeguards, such as adversarial proceedings before an independent body, against arbitrary exercise of the discretion left to the executive.26 (Emphasis added)

When is a limitation proportionate?

5.10 Any limitation on the rights to freedom of expression and association must also be proportionate to the legitimate end sought to be achieved. The principle of proportionality is imported into article 19(3) by the word "necessary"27 and into article 22(2) by the words "necessary in a democratic society".28

5.11 The principle of proportionality therefore requires a consideration of the relationship between a purpose and the means by which that purpose is achieved. The test of proportionality adopted by the HRC requires that a particular limiting measure be the least restrictive means of achieving the relevant purpose.29 This is to ensure that the restriction does not jeopardise the right itself.30

6. DOES THE CRIMINAL CODE COMPLY WITH INTERNATIONAL HUMAN RIGHTS LAW?

6.1 HREOC considers that the broad discretion given to the Attorney-General to proscribe and subsequently de-list an organisation does not satisfy the international human rights law requirement that any interference with ICCPR rights (in this case, the right to association and expression) be "prescribed by law" and proportionate to the legitimate aim sought to be achieved by the legislature.

The proscription regime may not meet the requirement that it be "prescribed by law"

6.2 The requirement that listing regulations be placed before the parliament and the requirement that the leader of the Opposition be briefed in relation to organisations under subparagraph (b) of the definition of terrorist organisation provide some parliamentary control on the exercise of the Attorney-General's proscription powers.

6.3 However, HREOC considers that those requirements are inadequate to safeguard against the potentially arbitrary exercise of those powers given the absolute nature of that discretion, the breadth of the definition of 'terrorist act' in section 100.1 and 'advocates' in sections 102.1(1A) and 102.1(2), the significant consequences of proscription for an organisation and the absence of any other procedural safeguards. In particular, HREOC is concerned:

  • about the lack of any criteria for the exercise of the Attorney-General's discretion in specifying an organisation as a terrorist organisation or in considering whether to de-list an organisation.31
  • that interested parties (including community groups) are provided with a limited opportunity to make representations to the Attorney or the Parliament as to the appropriateness of the proposed proscription of an organisation prior to its listing. Indeed, HREOC notes that it is not mandatory for the Parliamentary Joint Committee on ASIO, ASIS and DSD to review and report to Parliament in relation to the regulations.32 There is also limited opportunity to challenge the Attorney-General's decision to specify an organisation (see below).
  • merits review of the Attorney-General's decision not to de-list an organisation is unavailable under the legislation. Review of the Attorney's decision is limited to judicial review under the ADJR Act. Judicial review is the term applied to the process of checking for technical legal errors in the steps that lead to the making of the order. It is not a process that allows an investigation of the facts or of the reasonableness and proportionality of the detention.

6.4 HREOC submits that the Criminal Code should include criteria required to be taken into account by the Attorney-General in determining whether to proscribe an organisation as a terrorist organisation and considering an application for de-listing. This would not only ensure that the proscription process meets the requirement that it be "prescribed by law", but also the requirement of proportionality (see discussion below).

6.5 HREOC notes that in its most recent report33 the Parliamentary Joint Committee on ASIO, ASIS and DSD recommended that ASIO and the Attorney-General specifically address each of the following six criteria in the statements of reasons accompanying listing regulations:34

  • Engagement in terrorism
  • Ideology and links to other terrorist groups/networks
  • Links to Australia
  • Threat to Australian interests
  • Proscription by the UN or other like-minded countries35
  • Engagement in peace/mediation processes

6.6 HREOC submits that these factors identified by the Committee could form the basis of criteria to which the Attorney-General is required to have regard in proscribing an organisation and considering a de-listing application.

6.7 Circumscribing the Attorney-General's discretion in this way will provide legal certainty to organisations and persons to whom the derivative offences may apply, as required by international human rights law. Making it clear on what basis organisations are selected for proscription will also assist in ensuring that proscription does not operate in a discriminatory manner, contrary to article 26 of the ICCPR.36 Enhancing the transparency of the proscription process will increase public confidence in the process operating to protect Australians and Australia's national interests and not targeting one sector of the Australian community.37

6.8 In the event that a judicial proscription process is adopted in favour of the current process (see discussion in paragraphs 5.20 to 5.25 below) HREOC submits that the legislation should similarly set out those factors required to be taken into account by the courts in determining whether to proscribe an organisation, including the criterion of proportionality (see discussion in paragraph 5.19 below). This will ensure that any judicial proscription process also complies with the requirement that it be "prescribed by law" and proportionate in all the circumstances.

The proscription regime may lead to disproportionate outcomes in some circumstances

6.9 Adopting clear criteria for the exercise of the Attorney-General's discretion will also assist to ensure that proscription of an organisation as a terrorist organisation is proportionate to the aim sought to be achieved in light of the aims and activities of the organisation and the significant consequences of proscription on the rights to freedom of association and expression guaranteed by the ICCPR.

6.10 The breadth of the Attorney-General's proscription power may lead to those powers disproportionately restricting the right to freedom of association or expression in some cases.38 For instance, it may be a disproportionate limitation on the right to freedom of association or expression to:

  • Proscribe an organisation whose activities are directed against a repressive and brutal regime and who do not target civilians.39
  • Proscribe an organisation that does not have any current known links to Australia or who has not conducted any terrorist operations against Australia or Australians.40
  • Impose criminal sanctions (via the derivative provisions in division 102) on a person who supports the non-violent or political wing of a specified organisation which has several aspects to its organisation.41

6.11 In The Queen (On Application of the Kurdistan Workers' Paper and Others), (On Application of the People's Mojahedin Organisation of Iran and Others) and (On Application of Lashkar e Tayyabah and Others) v Secretary of the Home Department42 the applicants applied for judicial review of the Home Secretary's decision to proscribe them as terrorist organisations under the UK Terrorism Act 2000. Although the application was dismissed on the basis that it had been made prematurely, the High Court (Administrative Division) held that in its view it was "arguable" that the proscription of the People's Mojahedin Organisation of Iran (the PMOI) and Lashkar e Tayyabah (the LeT) was disproportionate having regard to the evidence before the court as to the limited aims and activities of those organisations,43 and the very serious consequences of proscription for rights as important as those of freedom of association and expression.44

6.12 In its most recent report,45 the Parliamentary Joint Committee on ASIO, ASIS and DSD considered whether the re-listing of HAMAS and Hizballah was appropriate given the role of those organisations in the West Bank and Southern Lebanon, respectively.46 In its conclusion the Committee reiterated its comment in Review of the listing of the Palestinian Islamic Jihad (PIJ):47

there are circumstances where groups are involved in armed conflict and where their activities are confined to that armed conflict, when designations of terrorism might not be the most applicable or useful way of approaching the problem. Under these circumstances - within an armed conflict - the targeting of civilians should be condemned and strongly condemned, as violations of the Law of Armed Conflict and the Geneva Conventions. The distinction is important. All parties to an armed conflict are subject to this stricture. Moreover, these circumstances usually denote the breakdown of democratic processes and, with that, the impossibility of settling grievances by democratic means. Armed conflicts must be settled by peace processes. To this end, the banning of organisations by and in third countries may not be useful, unless financial and/or personnel support, which will prolong the conflict, is being provided from the third country. ASIO acknowledged this point to the Committee:

[When] there is a peace process, you can unintentionally make things worse if you do not think through the implications of the listing.

6.13 The breadth of the definition of 'advocates' in section 102.1(2) of the Criminal Code, the basis of the second limb of the Attorney-General's proscription power, may also lead to disproportionate outcomes and impermissibly restrict the right to freedom of expression in some circumstances.

6.14 Whilst HREOC acknowledges that paragraph (c) of the definition largely reflects a recommendation made by the Senate Legal and Constitutional Committee in its report into the Anti-Terrorism Act (No.2) 2005 (Cth) (which enacted that provision),48 HREOC considers that the definition remains extremely broad. This is for two reasons. First, paragraph (c) does not refer to a "substantial risk" as recommended by the Committee, but merely a "risk" such praise might have the effect of leading a person (regardless of age of metal impairment) to engage in a terrorist act.49 HREOC submits that "risk" should be amended to "substantial risk", as recommended by the Senate Legal and Constitutional Committee. Second, the definition does not clearly set out the circumstances in which advocacy will be attributed to an organisation and hence, when a person who is a member of an organisation will be held accountable for the actions or views expressed by other members of that organisation. HREOC notes that under the definition as it is currently drafted, a person who is a member of an group could be liable under the derivative offences (such as membership) where another member of that group 'praises' a terrorist act, even where that person who did the action is not the leader of the group, or the statement is not accepted by other members as representing the views of the group.

6.15 The second issue was discussed by the Senate Legal and Constitutional Committee in its report into the Anti-Terrorism Act (No.2) 2005 (Cth) as follows:

5.237 The committee also recognises concerns about the lack of clear criteria for determining the circumstances under which advocacy of terrorism can be attributed to an organisation. The committee particularly notes concerns that members of an organisation might be accountable for actions of others in their group which are beyond their control. The committee therefore recommends that the definition of 'advocates' be amended to include criteria to clarify the circumstances to be taken into account in deciding whether the advocacy of terrorism is an 'organisational position'. In this context, the committee notes the suggestion by AMCAN [Australian Muslim Civil Rights Advocacy Network] that possible criteria could include, for example, that the statements advocating terrorism are made by the acknowledged leader of the organisation; that the statements advocating terrorism are made on official material distributed or speeches given by the leader or organisation; and the statements are made on multiple occasions.

5.238 The committee considers that this is consistent with the evidence from the [Attorney-General's] Department that these sorts of matters would be considered in any case before an organisation could be listed under these provisions. For example, the Department told the committee that single statements by individual members would be unlikely to be attributed to the organisation as a whole. However, the committee believes that this should be clarified by expressly including relevant criteria in the legislation.50

6.16 The Committee then recommended that the definition of 'advocates' be amended to include criteria to clarify the circumstances to be taken into account in determining whether an 'organisation' may be considered to 'advocate terrorism'.51

6.17 Consistent with the recommendations of the Senate Legal and Constitutional Committee, HREOC submits that the criteria to which the Attorney-General should have regard in proscribing an organisation should include specific criteria applicable to determining whether an organisation advocates terrorism. Such criteria could include that recommended by the Committee.52

6.18 Whether the proscription of a particular organisation lacks proportionality will depend on all the facts and evidence before the decision maker at the time. As suggested by the Parliamentary Joint Committee on ASIO, ASIS and DSD, HREOC considers there is a real danger that in some cases an organisation may be inappropriately proscribed having regard to its limited activities and links with and threat posed to Australia. This is especially the case given the breadth of the Attorney-General's discretion and definitions of terrorist organisation, terrorist act and advocates.

6.19 Hence, in addition to the criteria to which the Attorney-General should have regard on proscribing an organisation suggested by the Parliamentary Joint Committee on ASIO, ASIS and DSD and the Senate Legal and Constitutional Committee, the Attorney-General should be required to consider whether proscription is proportionate in all the circumstances. This could be achieved by adopting a provision similar to section 104.4 of the Criminal Code,53 which imports a proportionality test. That section provides that, in relation to the making of an interim control order, the issuing court must be satisfied on the balance of probabilities that "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 [legitimate] purpose of protecting the public from a terrorist act" (emphasis added).

Proscription should be subject to judicial review

6.20 Given the nature of the human rights potentially restricted upon proscription of an organisation and the serious criminal penalties that apply to the derivative offences, HREOC considers that the proscription process should attract careful judicial scrutiny.54

6.21 Ideally, in HREOC's view, the proscription process itself should be a judicial rather than executive process. HREOC submits that a process similar to that currently existing in relation to unlawful associations in sections 30A and 30AA of the Crimes Act 1914 (Cth) could be adopted by the legislature.55 Under the unlawful association provisions:

  • the Attorney-General may apply by way of summons to the Federal Court for an order calling upon a body of persons to show cause why it should not be declared to be an unlawful organisation; 56
  • the summons must set out the facts relied upon in support of the application;57
  • any officer or member of the body may appear on behalf of the body; 58
  • if the court is not satisfied of cause to the contrary, it may declare the body to be an unlawful association; 59 and
  • any interested person may apply to the Federal Court within 14 days to have the order set aside, with such application to be heard by the Full Court who may affirm or annul the declaration.60

6.22 Provisions should also be included to enable the Attorney-General to make an urgent application for the proscription of an organisation, upon establishing reasonable grounds for the urgency. This would ensure that an organisation could be expeditiously proscribed if required.

6.23 Judicial oversight will assist to ensure that the proscription process does not operate in a politically motivated or discriminatory manner contrary to article 26 of the ICCPR.61 HREOC also submits that it will also increase public confidence in the impartiality of the proscription process.

6.24 In the absence of judicial proscription process, HREOC considers that, at a minimum, merits review should be available to persons seeking to challenge the Attorney-General's decision to proscribe an organisation. This would assist in ensuring that the proscription power does not operate disproportionately, and imposed impermissible restrictions on the right to freedom of association and expression.62

6.25 In the absence of a judicial proscription process, HREOC also considers that section 102.1A(1) of the Criminal Code should be amended to require that terrorist organisation regulations be reviewed by the Joint Parliamentary Committee on ASIO, ASIS and DSD. This would ensure that the proscription power was subject to Parliamentary scrutiny on each occasion on which it is exercised. This would assist in ensuring that the proscription of an organisation is more likely to be proportionate, having regard to the nature and activities of the organisation.

The derivative offences: sections 102.3, 102.7 and 102.8 may not be proportionate

6.26 HREOC comments about sections 102.3, 102.7 and 102.8 of the Criminal Code.

Section 102.3

6.27 Section 102.3 makes it an offence to be a member of a terrorist organisation. Subsection (2) of that section provides a defence in the following terms:

(2) Subsection (1) does not apply if the person proves that he or she took all reasonable steps to cease to be a member of the organisation as soon as practicable after the person knew that the organisation was a terrorist organisation.

Note: A defendant bears a legal burden in relation to the matter in subsection (2).

6.28 In Attorney-General Reference No.4 of 2002,63 the House of Lords was asked for an advisory opinion as to whether placing a legal burden on an accused in a similar provision in the UK Terrorism Act 2000 was compatible with the ECHR, in particular article 6(2) which protects the presumption of innocence.

6.29 The majority of the House of Lords advised that article 6(2) of the ECHR required the relevant provision to be read and given effect as placing an evidentiary and not a legal burden on an accused.64 The court advised that placing the legal burden on the accused was disproportionate to the legitimate aim sought to be achieved by the legislature, given the breadth of and penalty accompanying the offence of membership of a terrorist organisation.65

6.30 HREOC considers that the corresponding article of the ICCPR (article 14(2)) may similarly weigh in favour of a construction requiring section 102.3(2) to be read down as imposing an evidential rather than legal burden on a defendant. Consequently, in the interests of legal certainty and the avoidance of doubt, HREOC recommends that section 103.2 be amended to limit the burden placed on the accused to an evidential burden.

Section 102.7

6.31 HREOC is concerned about the breadth of the term "support" in section 102.7(1). HREOC submits that the ambiguity and breadth of the term "support" may render section 102.7(1) disproportionate to the legitimate aim sought to be achieved by the legislature.66 As such, section 102.7(1) may impermissibly restrict the right to freedom of expression.

6.32 Section 107.2 provides:

107.2 Providing support to a terrorist organisation

(1) A person commits an offence if:

  1. the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and
  2. the organisation is a terrorist organisation; and
  3. the person knows the organisation is a terrorist organisation.

Penalty: Imprisonment for 25 years.

(2) A person commits an offence if:

  1. the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and
  2. the organisation is a terrorist organisation; and
  3. the person is reckless as to whether the organisation is a terrorist organisation.

Penalty: Imprisonment for 15 years.

6.33 'Support' is not defined in the Criminal Code. Section 102.7(1) would therefore appear to prohibit support that directly and indirectly helps a terrorist organisation engage in a terrorist act (which is itself broadly defined).67 As such, section 102.7 may extend to the publication of views that appear to be favourable to a proscribed organisation and its stated objectives.68

6.34 HREOC notes that the European Court of Human Rights has held that the comparable provision to article 19(3) of the ICCPR, article 10(2) of the ECHR, only permits laws restricting expression which incites to violence or public disorder.69 It has stated that article 10(2) provides 'little scope for restrictions on political speech or matters of public interest'.70 This is in recognition of the fundamental importance of freedom of expression to democratic society.71

6.35 HREOC submits that section 102.7 may therefore disproportionately restrict the right to freedom of expression. This is because it arguably extends to expression other than expression which 'incites to violence or public disorder'.72 It may also impermissibly infringe the right to freedom of association. HREOC therefore contends that the term 'support' used in section 102.7 should be defined in such a way as to ensure that it does not deprive that section of its proportionality.

Section 102.8

6.36 In its submission to the Senate Legal and Constitutional Committee's inquiry into the Anti-Terrorism Bill (No.2) 200473 HREOC raised concerns about section 102.8 of the Criminal Code.74 The relevant part of that submission is reproduced in Appendix A to this submission.

6.37 HREOC reiterates its concerns expressed in that submission that section 102.8 lacks precision and clarity, and is extremely broad in its reach, which may contravene the requirement for proportionality. HREOC also reiterates that the narrow exemptions contained in section 102.8(4) do not allay those concerns. Consequently, HREOC repeats its submission that section 102.8 potentially infringes the rights to freedom of association and freedom of expression guaranteed under the ICCPR.

6.38 HREOC notes that in its report into the Anti-Terrorism Bill (No.2) 2004 the majority of the Senate Legal and Constitutional Committee concluded in relation to section 102.8 that:

3.113 The Committee is concerned about the proposed association offence. The evidence does not persuade the Committee of the need for the offence 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. The Committee notes with apprehension the tendency towards 'legislative overreach' in relation to counter-terrorism measures in Australia.

3.114 Further, the Committee is of the view that the drafting of the offence provision results in it lacking certainty and clarity. The breadth of the offence, its lack of detail and certainty, along with the narrowness of its exemptions lead the Committee to conclude that serious difficulties would result in practical application. Some of these difficulties include the offence's potential capture of a wide range of legitimate activities, such as some social and religious festivals and gatherings, investigative journalism, and the provision of legal advice and legal representation. Evidence received also shows that it is likely to result in significant prosecutorial complications. Further, the Committee is not satisfied by the Attorney-General Department's justification for the offence, in particular its argument that prosecutorial discretion is in effect its only safeguard against misuse.

3.115 The Committee considers that the offence provision could be significantly amended to make it less opaque and that the exemptions to the offence could also be expanded.

6.39 The Committee relevantly recommended that:

  • the terms "membership", "associates", "support", "promotes", and "family or domestic concern" used in section 102.8 be defined in the Criminal Code;75
  • the provisions relating to the presumption against bail in the Anti-Terrorism Bill (No.2) 2004 not apply to section 102.8; 76
  • the exemption in section 102.8(4)(b) be extended to cover religious practice in places other than public places being used for religious worship; 77 and
  • the exemption in section 102.8(4)(d) be amended to ensure that access to legal advice required to meet the obligations and exercise the rights in broader anti-terrorism legislation is permitted.78

6.40 HREOC notes that the Senate Legal and Constitutional Committee's recommendations were not adopted by the Government.

6.41 HREOC submits that this Committee should consider recommending that section 102.8 be repealed, on the basis of the conclusions drawn by the Senate Legal and Constitutional Committee regarding the need for such an offence. Alternatively, at a minimum, section 102.8 should be amended to bring that section in line with the recommendations of the Senate Legal and Constitutional Committee outlined above.

Human Rights and Equal Opportunity Commission

January 2006

APPENDIX A

HREOC's submission to the Senate Legal and Constitutional Committee's inquiry into the Anti-Terrorism Bill (No.2) 2004 (Cth), 8 July 2004, in relation to the proposed section 102.8 of the Criminal Code (footnotes omitted)

Amendments to the Criminal Code

  1. The Anti-Terrorism Bill introduces a new s.102.8 into the Criminal Code to extend the application of offence provisions to people whose associations with a listed terrorist organisation, or with a person who is a member or who promotes or directs the activities of such an organisation, assists the organisation to expand or continue to exist. The elements of the new offence are as follows:
    1. the person intentionally associates with a person who is a member of, or a person who promotes or directs the activities of, an organisation;
    2. the person knows that the organisation is a terrorist organisation;
    3. the association provides support to the organisation;
    4. the person intends that the support assist the organisation to expand or to continue to exist;
    5. the person knows that the other person is a member of, or a person who promotes or directs the activities of, the organisation; and
    6. the organisation is a terrorist organisation under the Criminal Code Regulations 2002.
  2. There are a number of exemptions to the new offence prescribed at s.102.8(4). These include, relevantly for the purposes of this submission, that the section does not apply:
    1. when the association is with a close family member and relates only to a matter that could reasonably be regarded as a matter of family or domestic concern;
    2. when the association is only for the purpose of providing legal advice or legal representation in connection with criminal proceedings; or proceedings relating to whether the organisation is a terrorist organisation;
    3. to the extent that it would infringe any constitutional doctrine of implied freedom of political communication.

The proportionality of the response

  1. The Commission is concerned that the new offence lacks precision and is wide ranging in terms of the types of activities or persons who might be subject to it.
  2. The stated intention of the amendment is that the offence apply in relation to the provision of support to a terrorist organisation as an entity, rather than with respect to the activities of the organisation. The offence is designed to address what is said to be the fundamental unacceptability of the organisation itself by making associating with the organisation in a manner which assists the continued existence or the expansion of the organisation illegal
  3. The offence potentially infringes the rights prescribed in article 19 (freedom of expression) and article 22 (freedom of association) of the ICCPR. As noted above, such infringements will only be permissible if the proposed amendments conform to the principle of proportionality and are the least intrusive means to achieve the stated aim. The Commission is concerned that, particularly in view of the width of the offence and lack of precision of its terms, these requirements are not met. The Commission's concerns are set out below and are highlighted by way of examples, where possible.
  4. The amendment provides that it is an offence to intentionally associate with a member of, or a person who promotes or directs the activities of, a terrorist organisation. Although it is an offence under the Criminal Code to be a member of, or to direct the activities of, a terrorist organisation - it is not an offence in itself to 'promote' the activities of a terrorist organisation. The term 'promotes' is not defined within the Criminal Code. Accordingly, if, for example, a journalist writes an article in support of the non-violent activities of a proscribed terrorist organisation and intends that this support will assist the organisation to continue, the journalist in 'promoting' the activities of the organisation is not guilty of an offence. If, however, a member of the public communicates twice with the journalist and expresses agreement with the journalist's views, thereby providing support to the continued existence of the organisation, the person could potentially be found guilty of the new offence of association.
  5. The amendment also provides that the person's association must provide support to the organisation and the person must intend that the support 'assist' the organisation to expand or to continue to exist. The Commission is concerned with the width of the term 'assist' and the range of activities that may fall within it. For example, would writing articles or opinion pieces against the Attorney-General's decision to proscribe a particular organisation fall within the meaning of providing support to an organisation and intending that the support 'assist' the organisation to continue to exist? If so, then an author who communicates twice with a member of a terrorist organisation solely for the purposes of preparing such an article may be found guilty of an offence under proposed s.102.8.
  6. The Commission submits that in order to conform with the principle of proportionality the offence must be defined with precision in order to identify the nature and extent of the risk that the offence is intended to address. The Commission submits that the term could be defined with reference to particular examples. In the United States, for example, the legislation lists specific examples including, the provision of financial services, weapons, expert advice, safe houses, false documentation, or personnel.
  7. The Commission, however, notes with concern that it appears to be the very intention of the amendment that the term 'assist' be wide ranging. It is stated in the Explanatory Memorandum that 'the amendment is by necessity wide-ranging in terms of the types of activities or persons who might be subject to it.' The Commission questions the necessity for such a wide ranging provision. This is particularly the case when a range of activities that could fall within its scope are already proscribed under the Criminal Code. For example, the Criminal Code proscribes intentionally receiving funds from or making funds available to a terrorist organisation (s.102.6); directing the activities of a terrorist organisation (s.102.2); recruiting for a terrorist organisation (s.102.4); membership (including informal membership) of a terrorist organisation (s.102.3); and training or receiving training from a terrorist organisation (s.102.5). Providing an organisation with support or resources that would help the organisation directly or indirectly engage in preparing, planning, assisting or fostering the doing of a terrorist act is also proscribed (s.102.7).
  8. The Commission's concerns in relation to proportionality are not allayed by the proposed exemptions. As presently drafted, the exemptions do not provide adequate protection for lawyers, journalists and close family members.
  9. Section 102.8(4)(d) provides an exemption when the association is only for the purpose of providing legal advice or legal representation in connection with criminal proceedings or proceedings relating to whether the organisation is a terrorist organisation. The Commission is concerned that this exemption has been drafted toonarrowly, particularly in light of the width of the offence. The exemption as currently drafted requires proceedings to be on foot. Accordingly, for example, once an organisation has been proscribed, a lawyer providing legal advice to the organisation to have its declaration revoked, in the absence of any proceedings, would fall outside the exemption and be guilty of an offence of association under new s.102.8 of the Criminal Code.
  10. Section 102.8(6) provides that the offence does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication. The Commission is concerned that the scope and meaning of this exemption is not clear. The Commission notes that although the High Court in Lange v Australian Broadcasting Corporation set out the test for determining whether a law has breached the implied freedom of political communication, the ambit of 'political communication' was not clearly defined. It is, for example, unclear as to what extent it applies to matters of public concern that are not also issues of current political debate. Further, the question of how much protection such communication receives from the freedom has not been clearly answered. That is, although at times the High Court appears to have settled on a proportionality test, at other times some members of the High Court have departed from this test and have held that a stricter standard of review should apply to certain categories of cases. Suffice to say, the exemption as drafted does not provide any certainty for journalists or other political commentators as to whether their opinion pieces on proscribed organisations or interviews with members of proscribed organisations would fall within the ambit of the implied freedom of political communication. The Commission also notes with concern that the exemption carries a reverse onus and requires the defendant to establish the evidential burden.
  11. Finally, the Commission notes its concern with the exemption at 102.8(4)(a) for close family members. The exemption applies only to specific family members listed in the Bill and accordingly, cousins, aunts, uncles, nieces and nephews are provided with no protection. Further, it applies only when the association relates to a matter that could be reasonably regarded as 'a matter of family or domestic concern'. Accordingly, if a wife drives her husband to court if he is on trial for his membership of a terrorist organisation, is that a family or domestic concern or a culpable association? Moreover, would the wife be guilty of association if her husband discusses the proscribed terrorist organisation with her. The Commission is concerned that this is a heavily qualified exemption and submits that it should be extended both in relation to the family members that are afforded protection and in relation to the types of association that are protected.

ENDNOTES

  • [1]SeeUNSecretary-General's keynote address to the Closing Plenary of the International Summit on Democracy, Terrorism and Security, Madrid, Spain, 10 March 2005. See also, Security Council Resolution 1373 (2001) adopted by the Security Council at its 4385 th meeting, on 28 September 2001.
  • [2] By the Terrorism (Commonwealth Powers) Act 2002 (NSW); Terrorism (Commonwealth Powers) Act 2002 (Qld); Terrorism (Commonwealth Powers) Act 2002 (SA); Terrorism (Commonwealth Powers) Act 2002 (Tas); Terrorism (Commonwealth Powers) Act 2003 (Vic) and Terrorism (Commonwealth Powers) Act 2002 (WA).
  • [3] By the Terrorism ( Northern Territory) Request Act 2003 (NT). The ACT does not appear to have enacted similar legislation.
  • [4] These provisions were inserted into division 101 of the Criminal Code by the Anti-Terrorism Act 2005 (Cth).
  • [5] section 102.1(2)(a).
  • [6] section 102.1(2)(b), which was inserted by the Anti-Terrorism Act (No.2) 2005 (Cth).
  • [7] This definition was inserted by the Anti-Terrorism Act (No.2) 2005 (Cth).
  • [8] section 102.1(2A).
  • [9] section 102.1(12).
  • [10] That committee is also charged with reviewing the operation and effectiveness of subsections 102.1(2), (2A), (4), (5), (6), (17) and (18): section 102.1A(2).
  • [11] See section 102.1(4).
  • [12] See section 102.1(5).
  • [13] HREOC notes that this section was enacted by the Anti-Terrorism Act (No.2) 2004 (Cth).
  • [14] section 102.1(18)
  • [15] S Joseph et al., ICCPR: Cases, Materials and Commentary, 2 nd Ed, OUP 2004, [1.67] and [18.19].
  • [16] Ibid [1.67].
  • [17] Human Rights Committee, Freedomof movement (Art.12) , UN Doc CCPR/C/21/Rev.1/Add.9, General Comment No.27 (General Comments) available at www.unhchr.ch/tbs/doc.nsf
  • [18] Ibid [1.68].
  • [19] HRCCommunication No. 27/1977, UN Doc CCPR/C/14/D/27/1977 available at www.unhchr.ch/tbs/doc.nsf
  • [20] Ibid [34].
  • [21] See S Joseph et al., ICCPR: Cases, Materials and Commentary, 2 nd Ed, OUP 2004, [16.10]
  • [22] Adopted by the Council of Europein Rome 4 November 1950 and the Five Additional Protocols adopted in Paris 20 March 1952, Strasbourg 6 May 1963, 16 September 1963 and 20 January 1966.
  • [23]Gorzelik v. Poland ( 2005) 40 EHRR 4, [64]-[65]. See also, Rekve ©nyi v Hungary [GC] (2000) 30 EHRR 519 at [34] and Refah Partisi (The Welfare Party) v Turkey [GC] (2003) 37 EHRR 1 at [57].
  • [24] (2002) 34 EHRR 55.
  • [25] Ibid [86].
  • [26] Ibid [84]-[85]. See also Supreme Holy Council of the Muslim Community v Bulgaria (2005) 41 ECHRR 3, [88]-[89] and Refah Partisi (the Welfare Party)v Turkey(2003) 37 ECHRR 1, [57].
  • [27] See Faurisson v France, HRC Communication No. 550/93, [8].
  • [28] See S Joseph, et al., ICCPR: Cases, Materials and Commentary, 2 nd Ed, OUP 2004, [19.05].
  • [29] See generally regarding proportionality and the tests applied internationally: J Kirk "Constitutional Guarantees, Characterisation and Proportionality" (1997) 21 MULR 1.
  • [30] See, for instance, Human Rights Committee, General Comment No.10: Freedom of Expression (Art 19): 29/6/83, CCPR General Comment No.10 (General Comments), available at http://www.unhchr.ch/tbs/doc.nsf
  • [31] An example of the process followed by the Attorney-General is contained in Chapter 1 of the Parliamentary Joint Committee on ASIO, ASIS and DSD, Review of the listing of four terrorist organisations, May 2005, the full text of which is available at: http://www.aph.gov.au/house/committee/pjcaad/terrorist_listingsc/report.htm
  • [32] Note that section 102.1A only states that the committee "may" review the listing regulation and report its comments and recommendations to the Parliament.
  • [33] Parliamentary Joint Committee on ASIO, ASIS and DSD, Review of the listing of four terrorist organisations, May 2005, the full text of which is available at http://www.aph.gov.au/house/committee/pjcaad/terrorist_listingsc/report.htm
  • [34] Ibid, [3.2].
  • [35] Note however, proscription regimes in the UK and Canada and the USA operate in the context of the Human Rights Act 1988 ( UK) and the Canadian Charter of Rights and Freedoms and the US Bill of Rights, respectively. In relation to the UK, HREOC notes that the Human Rights Act 1998 ( UK) operates to ensure that the Terrorism Act2000 ( UK) (in both its terms and operation) is consistent with the ECHR. In particular the Human Rights Act 1998 provides affected persons with an opportunity to challenge action taken against them under the Terrorism Act 2000. Hence, while the proscription regime established by the Criminal Code reflects that adopted under the UKTerrorismAct 2000, when considering the UK Act, it should be borne in mind that the Human Rights Act1998 creates a fundamental difference in the context in which the UK and Australian laws operate.
  • [36] Article 26 of the ICCPR provides that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law.
  • [37] See C Uhlmann, About the House, (23) May 2005, pp 39-40. See also, S Joseph 'Australian Counter-Terrorism Legislation and the International Human Rights Framework' 27(2) UNSWLJ (2004) 428, 433.
  • [38] See S Joseph 'Australian Counter-Terrorism Legislation and the International Human Rights Framework' 27(2) UNSWLJ (2004) 428, 438.
  • [39] See, for instance, The Queen (On Application of the Kurdistan Workers' Paper and Others), (On Application of the People's Mojahedin Organisation of Iran and Others) and (On Application of Lashkar e Tayyabah and Others) v Secretary of the Home Department [2002] EWHC 644. See also, S Joseph 'Australian Counter-Terrorism Legislation and the International Human Rights Framework' 27(2) UNSWLJ (2004) 428, 434.
  • [40] Ibid. See also, Parliamentary Joint Committee on ASIO, ASIS and DSD, Review of the listing of four terrorist organisations, May 2005, [3.88]-[3.89], the full text of which is available at
  • http://www.aph.gov.au/house/committee/pjcaad/terrorist_listingsc/report.htm
  • [41] HREOC notes that in Australia (unlike Canada and the USA) it would appear that only the military wing of Hamas has been specified by the Attorney-General: see Henry Jackson, 'The power to proscribe terrorist organisations under the Commonwealth Criminal Code: Is it open to abuse?' (2005) 16 Public Law Review 134, fnte 38. However, in the absence of any criteria circumscribing the Attorney-General's power to specify an organisation as a terrorist organisation and given the breadth of the definition of 'terrorist organisation', in HREOC's view, it would be open to the Attorney-General to specify the non-violent aspect of Hamas on the basis that it indirectly assisted in or fostered the doing of a terrorist act.
  • [42] [2002] EWHC 644.
  • [43] The evidence before the court in relation to PMOI had been that it was an organisation working for democratic, secular and pluralist government in Iran which would respect human rights. It has sought to achieve this through the Iranian political system but when denied access to that system resorted to underground armed struggle. Its armed attacks inside Iran are limited to military targets inside Iran. As such the PMOI does not target civilians or pose a threat to UK nationals overseas.. The evidence before court in relation to LeT was that it does not advocate the armed overthrow of the Government of India in Kashmir but campaigns for the right to a plebiscite and its military activities are confined to attacks against the Indian regime's military/security apparatus and as such do not target civilians or pose a threat to UK nationals overseas.
  • [44]The Queen (On Application of the Kurdistan Workers' Paper and Others), (On Application of the People's Mojahedin Organisation of Iran and Others) and (On Application of Lashkar e Tayyabah and Others) v Secretary of the Home Department [2002] EWHC 644, [67].
  • [45] Parliamentary Joint Committee on ASIO, ASIS and DSD, Review of the listing of four terrorist organisations, May 2005, the full text of which is available at: http://www.aph.gov.au/house/committee/pjcaad/terrorist_listingsc/report.htm
  • [46] Ibid, [3.88].
  • [47] Parliamentary Joint Committee on ASIO, ASIS and DSD, Review of the listing of the Palestinian Islamic Jihad (PIK), June 2004, p 23, the full text of which is available at: http://www.aph.gov.au/house/committee/pjcaad/pij/report.htm
  • [48] The Committee's report is available at: http://www.aph.gov.au/senate/committee/legcon_ctte/terrorism/report/index.htm
    See the comments of the Committee at paragraphs 5.234 and 5.325, and Recommendation 31.
  • [49] Ibid.
  • [50] See Recommendation 32, [5.239].
  • [51] See Recommendation 32 of the Committee's report.
  • [52] Adopting the submission of AMCAN.
  • [53] That section was inserted into the Act by the Anti-Terrorism (No.2) Act 2005 (Cth).
  • [54] See Hasan and Chaush v Bulgaria (2002) 34 ECHRR 55.See also, Al-Nashif v Bulgaria (2003) 36 ECHRR 37, [H14] a case involving detention for the purposes of deportation of an alien on national security grounds, the European Court of Human Rights held that:
    • Even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require that measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information. The individual must be able to challenge the executive's assertion that national security is at stake.
  • [55] However, HREOC notes that the Gibbs report into the review of federal criminal law recommended the repeal of the unlawful association provisions on the basis that 'activities at which these provisions are aimed can best be dealt with by existing criminal laws creating such offences such as murder, assault, abduction, damage to property and conspiracy: Attorney-General's Department, Review of Commonwealth Criminal Law, Fifth Interim Report, AGPS 1991, 314.
  • [56] section 30AA(1).
  • [57] section 30AA(2).
  • [58] section 30AA(5).
  • [59] section 30AA(7).
  • [60] sections 30AA(8) and (9).
  • [61] Ibid 437. Article 26 of the ICCPR requires that all persons be equal before the law and entitled without discrimination to the equal protection of the law.
  • [62] See S Joseph, 'Australian Counter-Terrorism Legislation and the International Human Rights Framework', (2004) 27(2) UNSW Law Journal 428, 438.
  • [63] [2005] 1 AC 264.
  • [64] See DPP; Ex Parte Kebeline [2000] 2 AC 326; R v Lambert [2001] 3 WLR 206. See also B McSherry, 'Terrorism Offences in the Criminal Code', (2004) 27(2) UNSW Law Journal 354, 370.
  • [65] Ibid [H26], [51]-[52] per Lord Bingham of Cornhill with whom the other members of the court agreed.
  • [66] Ibid 440.
  • [67] Ibid.
  • [68] Ibid.
  • [69] See Erdogdu v Turkey (2002) 34 EHRR 50; Baskaya andOke uoglu v Turkey (2001) 31 EHRR 10. See also, R (Rusbridger and Another) v Attorney-General [2004] 1 AC 357.
  • [70] (2002) 34 EHRR 50, [62]. See also, Suret & Ozdemir v Turkey7 BHRC 339; Hector vAttorney-General of Antigua and Barbuda [1990] 2 AC 312; Derbyshire County Council v Times Newspapers Ltd [1993] AC 534, 548; R v Shayla [2003] 1 AC 247 and R (Rusbridger and Another) v Attorney-General [2004] 1 AC 357.
  • [71] See Erdogdu v Turkey (2002) 34 EHRR 50, [53]. See also, Suret & Ozdemir v Turkey7 BHRC 339.
  • [72] As suggested by S Joseph 'Australian Counter-Terrorism Legislation and the International Human Rights Framework', (2004) 27(2) UNSW Law Journal 428, 440.
  • [73] The Committee's report is available at: http://www.aph.gov.au/senate/committee/legcon_ctte/completed_inquiries/2002-04/anti_terror_2/index.htm
  • [74] HREOC's submission to the Senate Committee is available at: http://www.humanrights.gov.au/legal/submissions/terrorism.html
  • [75] See Recommendation 3 at [3.116].
  • [76] See Recommendation 4 at [3.117].
  • [77] See Recommendation 5 at [3.118].
  • [78] See Recommendation 7 at [3.120].
Human Rights and Equal Opportunity Commission Website: Legal Information Last updated 03 March 2006.