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.