Complaints

Search

ARE WE CROSSING THE LINE?: FORUM ON NATIONAL SECURITY LAWS AND HUMAN RIGHTS

Commission – General

ARE WE CROSSING THE LINE?: FORUM ON NATIONAL SECURITY LAWS AND HUMAN RIGHTS

Click here for Presentation by The Hon John von Doussa QC, President HREOC

The Anti-Terrorism Bill 2005 - Forum at ACT legislature 31 October 2005

Dr Penelope Mathew*

Note: This is an updated version of the paper delivered at the forum that includes references to, and analysis of, the Anti-Terrorism Bill (No. 2) as introduced into parliament on 3 November 2005. An earlier version of the paper was delivered to a forum at Manning Clark House on 26 November 2005.

Executive Summary

This paper deals with two aspects of the bill: the preventative detention orders and the new sedition offence. It does not touch on the problematic control orders.

The new version of the bill is considerably tighter with respect to key issues such as giving the detainee information concerning the reasons he or she is in detention, spelling out the right to seek a judicial remedy, and imposing requirements on the issuing authority to ensure that the preventative detention order is a proportionate measure. These are very important and welcome safe-guards. Nevertheless, the bill still provides for the orders to be granted ex parte, i.e., without a hearing in the first instance. It still envisages situations in which adequate reasons might not be granted because of national security concerns. Moreover, it is unclear what the judicial remedy envisaged by the bill would be and what its time frame would be. There are thus some lingering issues as to whether Australia could argue that all cases of detention are justified, and therefore consistent with its obligations under Article 9 of the International Covenant on Civil and Political Rights. The possibly short duration of the detention does not necessarily mean that the detention is justified.

One of the most egregious aspects of the previous bill - the operation of the disclosure offence with respect to parents of a young person - has been dealt with satisfactorily. However, the semi-incommunicado nature of the detention is still of concern for the detainee, and for the nature of Australian society. Kafkaesque elements remain evident in the new version of the bill.

The detention of young persons remains of grave concern, given Australia's obligations not to detain anyone under the age of 18 excepting as a "last resort".

The new sedition offence of "urging violence within the community" deserves greater thought and debate. In particular, the quick move in the context of terrorism to the criminal law, and away from the framework of the Human Rights and Equal Opportunity Commission with its emphasis on conciliation and education ought to be debated properly, especially since the defences relating to the sedition offences are narrower than those available under the existing racial vilification provisions.

I will address two aspects of the Bill - preventative detention orders and the new sedition offence. On the second, I will say that I think it is possible to have some restrictions on harmful speech, but I am intrigued by the fact that the speech has not been dealt with in the context of antidiscrimination legislation, with its focus on education and conciliation, but in the rather old-fashioned context of sedition and the criminal law. In relation to the first, I will discuss a number of human rights concerns, highlighting the possibility of arbitrary detention, the semi-incommunicado nature of preventative detention, and the issue of the detention of young persons.

Preventative detention orders, which are dealt with in schedule 4, are made for short periods in order to

  1. prevent an imminent terrorist attack occurring; or
  2. preserve evidence of, or relating to, a recent terrorist attack.1

An imminent terrorist attack is one that will occur within 14 days,2 while a recent terrorist attack is one that has occurred in the last 28 days.3 Preventative detention may be ordered for up to 24 hours in the first instance.4 The "initial preventative detention order" may then be extended and further extended, although the entire period of detention, as extended, or further extended, is to total 24 hours.5 A "continued preventative detention order" may then be issued, and this too may be extended and further extended, although the entire period of detention under the initial preventative detention order and the continued preventative detention order as extended and further extended, is to total 48 hours.6 The States and Territories are then to legislate to permit detention from day 3 to 14.

While a continuing preventative detention order may be issued by a Federal Judge or a Magistrate,7 they only sit in a personal capacity rather than as a court.8 Moreover, this is not required for an initial preventative detention order. Thus, as is made crystal clear by the bill that was introduced into parliament on 3 November, a senior AFP member (hereafter "the AFP") is the issuing authority for an initial preventative detention order.9 In each case, then, there is no court hearing of the issues at the time that the order is issued. This has not changed in the version of the bill introduced into parliament on 3 November, although the bill now specifically refers to the fact that a detainee may apply to a court for a remedy in relation to "(a) a preventative detention order; or (b) the treatment of a person in connection with the person's detention under a preventative detention order".10 As pointed out in the advice by Lex Lasry QC and Kate Eastman (available on Jon Stanhope's website), who clearly had access to a relatively late version of the bill, it is unclear what this 'remedy' might be.

Previously, the right to apply to a court for a remedy was not spelt out. Instead, the original clause ousted the jurisdiction of State and Territory Courts so long as the preventative detention order was in force. Under the new version of the bill, it is still the case that State and Territory Courts cannot hear a case while the order is in force,11 and, while the new version of the bill allows review by the AAT, application for review cannot be made while the order is in force.12 However, the AAT can determine that the decision to issue the preventative detention order is void and that compensation should be paid.13

In the case of an initial preventative detention order, the original bill merely required the AFP to be "satisfied that:

  1. there are reasonable grounds to suspect that the subject:
    1. will engage in a terrorist act; or
    2. possesses a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act; or
    3. has done, or will do, an act in preparation for, or planning, a terrorist act; and
  2. making the order would substantially assist in preventing a terrorist act occurring."14

The new version of the Bill adds an important criterion to those listed above:

  1. detaining the subject for the period for which the person is to be detained under the order is reasonably necessary for the purpose referred to in paragraph (b).

This criterion brings in consideration of some measure of proportionality - an important requirement concerning limitations on rights under international human rights treaties. However, it is still the issuing authority which has to be "satisfied" that the measure is proportionate, and in the case of the initial preventative order, the issuing authority is still the AFP. Furthermore, while the AFP may apply for revocation of the order, the detainee may not.15

There is also a lingering question as to the quality of the reasons given to a person, and the point at which reasons are given under the new version of the bill. The absence of reasons rightly attracted criticism in the preliminary advice given by Professors Byrnes and Charlesworth, and Ms McKinnon to the ACT Chief Minister, Jon Stanhope (the advice is available on the Chief Minister's website), on the basis that the detention would be arbitrary under Article 9 of the International Covenant on Civil and Political Rights.

The bill requires that the detainee be informed about "the fact that the preventative detention order has been made in relation to the person", but this does not deal with the reasons for which the order was made.16 Under clause 105.321(b) a summary of the grounds on which the order is made must also be supplied, but it is unclear how far this summary might go beyond, say, information that the order was imposed to prevent an imminent attack or to preserve evidence of a past attack. Moreover, clause 105.3(2) provides that "paragraph (1)(b) does not require information to be included in the summary if the disclosure of the information is likely to prejudice national security." Thus it may be that adequate reasons for the detention are not promptly given to the person. The situation may not improve if the matter goes before a Court. In relation to state and territory courts, the new version of the bill provides that if the matter goes before a court for review of a state order, "the court may order the Commissioner of the [AFP] to give the court, and the parties to the proceedings, the information that was put before the person who issued the Commonwealth order when the application for the Commonwealth order was made."17 Again, information will not be given to the court or the parties "if the disclosure of the information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004)."18 In relation to federal courts, one would have to rely on the courts' ordinary ability to compel production of documents.

Article 9 of the ICCPR, to which Australia is a party and which has been legislatively implemented in the ACT by s18 of the Human Rights Act, provides that:

  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. ...
  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.

As the Byrnes, Charlesworth, McKinnon advice notes, the Human Rights Committee - the body of 18 independent experts who supervise the International Covenant on Civil and Political Rights (ICCPR) - has indicated in its general comment on Article 9,19 that so-called preventative detention imposed for security reasons does not escape these provisions. Although Article 9 is partially directed to criminal proceedings (for example, Article 9(3) which requires that a person detained in relation to a criminal charge must be brought "promptly" before a court), the article pertains to all forms of detention. So, the detention should not be arbitrary or unfair. Is it sufficient to have a member of the AFP satisfied that detention is necessary and proportionate? Information concerning the reasons for the detention must be given according to Article 9(2), and there may still be questions about the quality of the information given to the detainee and the point at which the detainee gains this information. The Human Rights Committee has specifically dealt with the situation where the only information given to the detainee was that a person was arrested "under prompt security measures without any indication of the substance" and the Committee determined that Article 9(2) was violated.20 Finally, court control of the detention must be available. While the new version of the bill identifies the fact that courts may grant remedies in relation to detention and envisages that a summary of the grounds for the order will be revealed, it may still be questionable whether a court in any particular instance has been able to decide "without delay" on the legality of the detention, and there is still the possibility of an inequality of arms between the parties as the quality of the information may still be limited in the interests of national security.

The government is clearly banking on the idea that the period of detention is so short under the Commonwealth legislation that this is all academic, particularly when the detention is "preventative" rather than "punitive", and giving the reasons for detention might be prejudicial to national security. The government may be relying on the fact that in the context of pre-trial detention, guidelines of a couple of days have been suggested in relation to bringing someone "promptly" before a court for the purposes of Article 9(3), while a few weeks has been suggested as a guideline for a "decision without delay" by a court for the purposes of Article 9(4).21 However, there are cases where as little as four days detention has been found to violate Article 9(3)22 and 6 days to violate Article 9(4),23 which could be well be possible time-frames under the current bill and state counterparts. Joseph, Castan and Schultz note the case of Hammel v Madagascar in which "incommunicado detention for three days, during which time it was impossible for the author to access a court to challenge his detention, was held to breach article 9(4)."24

In any event, I would suggest that the issue may be more complex. Firstly, the Committee has said that these matters need to be determined on a case by case basis. Moreover, it is not just the length of the detention that determines whether or not it is arbitrary. Detention for as short a time as one day is capable of being arbitrary. This is a point which successive Australian governments have stubbornly refused to acknowledge in the context of immigration detention.

Australia has been found by the Human Rights Committee to have violated both Articles 9(1) and (4) of the ICCPR repeatedly. 25 However, in Australia's formal response to the Committee in the first of these cases, it criticized the Committee for not telling Australia "at what point in time the detention became arbitrary."26 Whether preventative detention for a very short period is arbitrary will depend on whether, in the particular circumstances, the detention is necessary and proportionate to meet a rational objective. To ensure that this is the case, the courts are meant to act as a safeguard when the person is placed in detention, not some time after the period of detention is over. Moreover, in order to determine whether or not detention is justified, the Courts will need to know the reasons, as will the parties, and the Committee's General Comment clearly confirms that reasons must be given as stated in Article 9(2) of the Covenant, even in the context of preventative detention for security purposes.

It seems that Australia has not learned all its lessons when it comes to arbitrary detention. Lurching from one extreme to another, we have locked people up indefinitely in immigration detention and want to know at what point this became arbitrary; in some cases we have contemplated permanent detention simply because the detainees could not go anywhere else; and now apparently we think that if we only lock up people for a very short period of time for possibly vague security reasons it will be off the radar. What's important are the reasons for detention, and whether they withstand objective scrutiny as necessary and proportionate in the particular case to meet a rational and legitimate objective. It may be difficult, even in relation to the new version of the bill, for Australia to argue that there is adequate court control of preventative detention. While the bill shows an awareness of the jurisprudence relating to Article 9 of the ICCPR, it may be that it is a far too mechanistic and minimalist take on Australia's obligations. Australians ought to consider carefully whether this legislation is necessary to protect us, or whether it damages our society by dispensing with the freedoms we value. Giving in to fear will only make us less secure.

One of the other features of the preventative detention regime that is very worrying is the fact that it borders on keeping someone incommunicado, which is a point brought out in the Lasry/Eastman advice. In general, the rights of contact with the outside world are extremely limited. In the case of adult detainees - there are different rules for those between 16 and 1827 - contact with the outside world is prohibited with the exception of contact with one family member and persons one lives with, one's employers, business partners or employees28 and a lawyer29 and the ombudsman.30 The purpose of contact with family members and employers etc is solely to let the contacted person know that the detainee is safe.31 The new version of the bill as introduced into parliament spells out that the detainee is not entitled to disclose that a preventative detention order has been made, that he or she is in detention, or the period for which they are being detained.32 In connection with a preventative detention order that is either being sought or currently in force, it is possible to have a prohibited contact order.33 Such an order provides that the person detained under a preventative detention order is not to contact certain persons.34 Oddly, while the subject of the preventative detention order has certain rights, including the right to contact and to be informed of their right to contact a lawyer, the AFP is not required to inform the detainee that a prohibited contact order has been made in relation to the person's detention or the name of a person specified in the prohibited contact order.35 In addition to contact being extremely limited, and there being a possibility of a prohibited contact order, others may commit offences carrying a sentence of five years by disclosing to others that someone is in preventative detention.36 Under the original version of the bill, this would have affected the parents of a young person held in detention. The one member of the family who was contacted about a person's preventative detention could only inform other family members that the detainee was safe. The logic may have been that since the detainee could only tell the contacted person that the detainee was safe, no one would know that the person was in preventative detention so noone could disclose. We've all heard of the "don't ask, don't tell" policy in the context of gay men in the military - perhaps this is a "don't know, can't tell" kind of law.

The new version of the bill does deal with the situation of parents of a young person in preventative detention. Clause 105.39(3) of the bill now provides that the detainee is entitled to have contact with both parents or guardians. Nevertheless, the bill in its new form still retains enough of the ex parte and semi-incommunicado elements of detention to resemble the arrest in Kafka's The Trial. It begins with K asking why his landlady did not come into the room where he is sitting with the warders who have come to arrest him.

"Why didn't she come in?" he asked. "She isn't allowed to," said the tall warder, "since you're under arrest." "But how can I be under arrest? And particularly in such a ridiculous fashion?" "So now you're beginning it all over again?" said the warder ... . "We don't answer questions like that." "You'll have to answer them," said K. "Here are my papers, now show me yours and first of all your warrant for arresting me." "Oh, Good Lord" said the warder. "If you would only realize your position, and if you wouldn't insist on uselessly annoying us two, who probably mean better by you and stand closer to you than any other people in the world."... [w]e're quite capable of grasping the fact that the high authorities we serve, before they would order such an arrest as this, must be quite well informed about the reasons for the arrest and the person of the prisoner. There can be no mistake about that. Our officials, so far as I know them, and I know only the lowest grades among them, never go hunting for crime in the population, but, as the Law decrees, are drawn toward the guilty and must then send out us warders. That is the Law. How could there be a mistake in that?" "I don't know this law," said K. "All the worse for you," replied the warder. ... Franz interrupted: "See, Willem, he admits he doesn't know the Law and yet he claims he's innocent."37

That passage underscores the need for adequate judicial control of the executive's actions, and yet, what we have in this bill, as Justice Von Doussa has so eloquently stated, is an attempt to escape the fundamental safeguards of judicial control, and even to coopt the judiciary into functioning as part of the executive. The passage also underscores the need for contact with the outside world as an aspect of the humane treatment of prisoners in order to prevent the person from cracking.38

The fact that we are going to be detaining children - persons between 16 and 18 years old39 - is a particularly worrying aspect of the bill. One major point of difference between the regime for adults and that for youngsters between 16 and 18 is that greater contact with the outside world, namely parents or guardians, is permitted. But it is still limited. Furthermore, as a matter of international human rights law, the threshold for detention is higher than it is for adults. Under Article 37(b) of the Convention on the Rights of the Child, detention of minors is to occur only as a last resort. The Commonwealth Parliament has finally awakened to this fact in the context of immigration detention, with the inclusion of s4AA in the Migration Act as a result of the backbench revolt. Parliament has now rightly affirmed that detention of foreign children in immigration detention will only be as a last resort, and has sensibly decided to reassert some control over the executive by having this spelt out clearly in the Migration Act. And yet, under the Anti-Terrorism Bill we are now going to lock up Australian children on the basis of an AFP suspicion, without necessarily giving them adequate reasons for the order, and pursuant to what may amount to inadequate judicial control.

I want to end with a brief comment on the sedition offences. In schedule 7, the bill provides for a new sedition offence as follows:

"A person commits an offence if:

  1. the person urges a group or groups (whether distinguished by race, religion, nationality or political opinion) to use force or violence against another group or other groups (as so distinguished); and
  2. the use of the force or violence would threaten the peace, order and good government of the Commonwealth."40

The offence carries a penalty of imprisonment for 7 years.

The leader of the Opposition, Kim Beazley has made some interesting comments on the issue, arguing for stronger racial vilification laws. I certainly think it is interesting that the offence of "urging violence in the community" appears in the bill as the crime of sedition, rather than in the context of vilification laws.

In 1995, the Commonwealth enacted limited racial vilification provisions to implement, at least partially, Article 4 of the Convention on the Elimination of All Forms of Racial Discrimination.41 The racial vilification provisions are not criminal offences. Rather complaints may be made to the Human Rights and Equal Opportunity Commission, and the President attempts conciliation. Under international human rights law, religious hate speech that promotes hostility or violence should also be outlawed. Article 20 (2) of the International Covenant on Civil and Political Rights provides that "[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law."42

I think that the quick move in the context of terrorism to sedition - a set of offences that are closely connected to treason and bringing down the government - instead of some form of anti-vilification law is interesting to explore for three reasons. The first is the past reluctance to bring in racial vilification laws at all. Secondly, the focus in the racial vilification laws is on the educative process of conciliation in the first instance, and civil actions at the end of the day, rather than the criminal law. Thirdly, the defences under the racial vilification provisions are broader than those contained in the sedition offence in the anti-terrorism bill.

On the history, let's just go back to 1994 - 1995. Back then, many politicians quoted Voltaire's famous aphorism, "I may disagree with what you have to say, but I shall defend, to the death, your right to say it." Exactly why one would think racist speech is worth defending to the death is beyond me, but the philosophical point that outlawing speech may not be the best tactic is of course a respectable one.

Note that most politicians back then were unwilling to criminalize speech. and interestingly, this was the line that the current Attorney-General, Philip Ruddock, took at the time.43 So the unlawful acts form part of the softer more educative law of equal opportunity, by which a complaint may be registered and conciliation will be attempted in the first instance. What has changed? Well, in part, the explanation could be the fact that the focus of the crime is on incitement to violence, not merely speech that is likely - for example, to offend someone.44 But again, it is interesting to interrogate this apparent difference. What came first? Why didn't the racial vilification legislation deal with incitement to violence?45 HREOC's National Inquiry into Racist Violence argued that racist speech and racist violence were linked,46 but perhaps most politicians did not perceive the links back then. Now, it appears that they do. Has something changed, or is the difference that the speech we're thinking about now targets the majority, rather than a vulnerable religious or racial minority?

As I have indicated, the defences to the new sedition offence are much more limited than those under the racial vilification laws. Section 18D of the Racial Discrimination Act provides that it is not unlawful to do or say anything "reasonably and in good faith":

  1. in the performance, exhibition or distribution of an artistic work; or
  2. in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
  3. in making or publishing:
    1. a fair and accurate report of any event or matter of public interest; or
    2. a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

The defences to the new sedition offence include: a) a good faith attempt to show that members of government (for example) are mistaken; b) a good faith effort to point out errors or defects in government, legislation or administration of justice; c) urging in good faith someone to lawfully procure changes to law; d) pointing out in good faith matters that are tending to produce feelings of ill-will or hostility between different groups in order to remove those matters; or e) doing anything in good faith in connection with an industrial dispute or matter. These seem to be a fairly narrow set of defences.

I am not a proponent of unlimited speech. I think that there need to be provisions concerning racial vilification, especially in a country such as Australia where there is an unfortunate history of racism. But I think that the different histories behind the proposed new sedition offences and the earlier racial vilification laws suggest that we need - no pun intended - a very serious debate about the best ways in which to deal with speech that raises the prospect of violence. One begins to understand the fears of those who always advocate unlimited free speech, because laws limiting speech may impact detrimentally on the minorities who most need protection. The time-tabling for the release of the bill on Melbourne Cup Day suggests that our politicians did not welcome the debate that we clearly need to have.

* Reader in Law, The Australian National University. Date of paper: 4 November, 2005.

Endnotes

  1. Anti-Terrorism bill (No. 2) 2005, schedule 4, clause 105.1.
  2. Anti-Terrorism bill (No. 2) 2005, schedule 4, clause 105.4 (5) (b).
  3. Anti-Terrorism bill (No. 2) 2005, schedule 4, clause 105.4 (6) (a).
  4. Anti-Terrorism bill (No. 2) 2005, schedule 4, clause 105.8 (5).
  5. Anti-Terrorism bill (No. 2) 2005, schedule 4, clause 105.10(5) provides that "The period as extended, or further extended, must end no later than 24 hours after the person is first taken into custody under the order."
  6. Anti-Terrorism bill (No. 2) 2005, schedule 4, clause 105.12(3) read with clause 105.12 (5).
  7. Original Anti-Terrorism bill as posted on ACT Chief Minister, Jon Stanhope's website clause 105.2. The class of issuing authorites has been extended under the new version of the bill: see Anti-Terrorism bill (No. 2) 2005, clause 105.2 (1) (a) and (d) through (e). Now State and Territory Supreme Court judges, retired judges, the President and Deputy President of the AAT and anyone on the rolls of the State and Territory Supreme Courts may serve as an issuing authority.
  8. Anti-Terrorism bill (No. 2) 2005, schedule 4, clause 105.18(2).
  9. In the bill placed on Jon Stanhope's website, the reader had to have noted that the issuing authority in the case of an initial preventative detention order was the AFP. The Anti-Terrorism bill (No. 2) 2005, clause 105.8 is clearly headed "Senior AFP member may make initial preventative detention order", and note 1 flags the fact that "Senior AFP members are issuing authorities for initial preventative detention orders (see the definition of issuing authority in subsection 100.1 (1)."
  10. Anti-Terrorism bill (No. 2) 2005, schedule 4, clause 105.51 (1).
  11. Anti-Terrorism bill (No. 2) 2005, schedule 4, clause 105.51 (2).
  12. Anti-Terrorism bill (No. 2) 2005, schedule 4, clause 105.51(5).
  13. Anti-Terrorism bill (No. 2) 2005, schedule 4, clause 105.51 (7) (a) and (b).
  14. Anti-Terrorism bill posted on Jon Stanhope's website, clause 105.4(2) - these criteria applied to any issuing authority.
  15. Anti-Terrorism bill (No. 2) 2005, schedule 4, clause 105.17.
  16. Anti-Terrorism bill (No. 2) 2005, schedule 4, clause 105.28(2)(a).
  17. Anti-Terrorism bill (No. 2) 2005, schedule 4, clause 105.52 (3).
  18. Anti-Terrorism bill (No. 2) 2005, schedule 4, clause 105.52 (4).
  19. The general comments are a little like an advisory opinion stating the committee's views on a particular matter.
  20. Drescher Caldas v Uruguay, U.N. Doc. Supp. No. 40 (A/38/40) at 192 (1983), para 13.2.
  21. See the discussion of the Human Rights Committee's jurisprudence in Manfred Nowak, U.N Covenant on Civil and Political Right (first edition, 1993) , at 176 and 179. See also, Joseph, Schultz and Castan, The International Covenant on Civil and Political Rights, Cases and Commentary (second edition 2004), at 325.
  22. See Freemantle v Jamaica, U.N. Doc. CCPR/C/68/D/625/1995 (2000), at para 7.4.
  23. See Kennedy v Trinidad and Tobago, U.N. Doc. CCPR/C/74/D/845/1998 (2002), at para 7.6.
  24. Note 21 supra at 331.
  25. See Av Australia UN Doc CCPR/C/59/D/560/1993; Baban v Australia UN Doc CCPR/C/78/D/1014/2001; C v Australia UN Doc CCPR/C/76/D/900/1999; Bakhtiyari v Australia UN Doc CCPR/C/79/D/1069/2002.
  26. Response of the Australian Government to the Views of the Human Rights Committee in Communication No. 560/1993 (A v Australia), reprinted in 9 International Journal of Refugee Law (1997) p. 674 (at para 8).
  27. Anti-Terrorism bill (No. 2) 2005, schedule 4, clause 105.39.
  28. Anti-Terrorism bill (No. 2) 2005, schedule 4, clause 105.35 (1).
  29. Anti-terrorism bill (No. 2) 2005, schedule 4, clause 105.37.
  30. Anti-terrorism bill (No. 2) 2005, schedule 4, clause 105.36.
  31. ibid.
  32. Anti-Terrorism bill (No. 2) 2005, schedule 4, clause 105.35 (2).
  33. Anti-Terrorism bill (No. 2) 2005, schedule 4, clause 105.15.
  34. Anti-Terrorism bill (No. 2) 2005, schedule 4, clause 105.15(4).
  35. Anti-Terrorism bill (No. 2) 2005, schedule 4, clause 105.28(3).
  36. Anti-Terrorism bill (No. 2) 2005, schedule 4, clause 105.41.
  37. Franz Kafka, The Trial (New York, The Modern Library, Random House, 1964).
  38. Standard Minimum Rules for the Treatment of Prisoners, paragraphs 37 - 39, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977.
  39. For the purposes of the Convention on the Rights of the Child, the age of majority is generally 18: Article 1.
  40. Anti-Terrorism bill (No. 2) 2005, schedule 7, clause 80.2 (5).
  41. It should be noted that Australia still has a reservation to Article 4.
  42. Australia has a reservation to Article 20 as follows: "Australia interprets the rights provided for by articles 19, 21 and 22 as consistent with article 20; accordingly, the Commonwealth and the constituent States, having legislated with respect to the subject matter of the article in matters of practical concern in the interest of public order ( ordre public ), the right is reserved not to introduce any further legislative provision on these matters."
  43. See Luke McNamara, Regulating Racism, Racial Vilification Laws in Australia (2002), at 46.
  44. Section 18C(1) of the Racial Discrimination Act makes it unlawful for "a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group."
  45. See the discussion of a 1992 bill and provisions in the original 1994 bill dealing with threats against persons and property in McNamara, ibid, at 40 - 41.
  46. Human Rights and Equal Opportunity Commission, National Inquiry into Racist Violence, Racist Violence: Report of National Inquiry into Racist Violence in Canberra (Canberra, AGPS, 1991).

Last
updated 8 November 2005.

<br /> HREOC Website: Speeches<br />