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Human Rights and Human Security

Commission – General

Human Rights and Human Security

1 July 2006

The Hon John von Doussa, President, HREOC

President, Human Rights and Equal Opportunity Commission

I would like to acknowledge the Kurna people on whose land we meet today.

Firstly, I must applaud Amnesty International Australia’s campaign to
secure a fair trial for David Hicks. I hope you take some heart from the recent
US Supreme Court ruling that the military commissions set up to try prisoners at
Guantanamo Bay are illegal and must be abandoned.

I welcome the opportunity to speak tonight about balancing human rights and
human security from an Australian perspective. My concern is, and has been for
some time now, that human rights are, at best, being treated as a footnote to
the enactment of counter-terrorism legislation. A question for tonight is
whether, in our efforts to redress the balance, we need a new tool, some sort of
charter of rights?

The Balancing Act

In the last five years the spectre of terrorism has
certainly changed the legal landscape of democratic nations. In the wake of
September 11, Bali, Madrid and London there are concerns that the quest for
security has led to the abrogation of many fundamental human rights and
freedoms.

There are some who argue that human rights are the necessary casualty of
human security. In the aftermath of September 11, commentators openly questioned
whether the era of human rights had come and
gone.[1] To others, human rights and
human security are indivisible. Kofi Annan has observed:

Human security in its broadest sense, embraces far more than the absence
of violent conflict. It encompasses human rights, good governance, access to
education and health care and ensuring that each individual has opportunities
and choices to fulfil his or her
potential.[2]

This concept of human security is characterised by the freedom from violence and threats and the freedom to fulfil our potential. To
quote the Attorney-General: “protecting human security requires the
protection of both national security and civil
liberties”.[3]

Unfortunately, it seems that in debates about counter-terrorism,
‘security’ often becomes shorthand for ‘national
security’ and the broader concept of human security is lost. Protecting
national security is an important and necessary task. However, we must avoid
the trap of treating the relevance of human rights as inversely proportional to
the threat to national security.

I am not one of those who argue that counter-terrorism legislation is
unnecessary. Terrorism is a real and serious threat. The Government has an
obligation to protect the lives of its citizens and, by extension, the right to
life and the right to security of person.

The challenge facing Australia today is to effectively respond to the threat
of terrorism without abandoning the fundamental freedoms and protections which
lie at the heart of our democracy.

This is not an impossible task. The popular misconception that human rights
are inflexible, esoteric principles which undermine efforts to protect national
security is just that – a misconception.

International human rights law already strikes a balance between security
interests and rights considered to be fundamental to the person. International
human rights law permits protective actions to be taken by states but demands
that those actions be necessary and proportionate to meet the gravity of the
threat.

Counter-terrorism legislation in Australia

To appreciate the breadth of Australia’s counter-terrorism response, it
is worth providing a brief sketch of the major counter-terrorism legislation.

In the aftermath of the tragic events of September 11, the Government
introduced new counter-terrorism legislation, notably the Security
Legislation Amendment (Terrorism) Act 2002, which defined a “terrorist
act” and created new terrorism offences, including ones that derive from
being associated in different ways with an entity that is proscribed as a
“terrorist organisation”.

In October 2002, three days after the Bali Bombings claimed the lives of 87
Australians, the Government introduced a second major package of
counter-terrorism legislation. The ASIO Amendment Act 2002 gave broad
ranging powers to our security apparatus, including the power to obtain
questioning warrants and detention warrants for the purpose of obtaining
information about the planning or commission of a terrorist offence.

In September 2005, in response to the ‘home-grown’ terrorist
attacks on London, the Council of Australian Governments (COAG) agreed to
introduce a range of new powers, including:

  • control orders and preventive detention orders;
  • ministerial power to declare prescribed security zones and police powers to
    stop, search and question persons in relation to terrorist acts; and
  • a new sedition offence.

These powers were enacted in the Anti-Terrorism Act (No.2) 2005.

The expansion of
executive power

A persistent feature of counter-terrorism legislation has been the expansion
of executive power to make decisions which have the potential to infringe
fundamental human rights without corresponding checks and balances.

From a human rights perspective, it is not always the text of the law that is
the problem but how the powers which the laws create are exercised in a given
case. This is why it is vital that executive decision-making powers are subject
to review to check that an exercise of power is proportionate and necessary in
the particular circumstances.

To provide a proper and meaningful audit on the exercise of executive power,
counter-terrorism legislation needs to recognise not only the importance of
judicial review, to check the legal validity of the decision, but the need for
merits review. Merits Review is vital so that the person who is the subject of
the decision-making power can challenge the factual basis upon which the
decision was made.

For example, under the Anti-Terrorism Act (No.2) 2005 the
Attorney-General has the power to prescribe a security zone where everyone in
the zone is subject to police stop, search, questioning and seizure powers,
regardless of whether or not the police officer has reasonable grounds to
believe the person may be involved in the commission, or attempted commission,
of a terrorist act.

There is no effective mechanism for review, judicial or otherwise, of the
Attorney-General’s decision to prescribe a security zone. Members of the
public who are caught in this zone will be unable to challenge the validity of
the exercise of police powers.[4]

Another example of executive power which is not subject to any meaningful
review process is the Attorney-General’s power to proscribe a
‘terrorist organisation’ if satisfied on reasonable grounds that the
organization directly or indirectly plans, assists, fosters or advocates the
commission of a “terrorist act”.

The sheer breadth of the Attorney’s power creates a risk that, if a
decision is made on the wrong facts or the powers are applied too expansively,
the decision will violate the right to freedom of expression or association of
many quite innocent people who happen to have some connection with the
organisation.[5]

I believe that to safeguard against the potential breach of fundamental
rights, the decision to proscribe a terrorist organisation, like other exercises
of executive power under the counter-terrorism legislation, should be open to
independent scrutiny including merits review, and preferably before a court.

Significantly, the Government-appointed Security Legislation Review Committee
recently concluded that in balancing human rights and human security, any
interference with human rights must be reasonably proportionate to the need to
protect the security of Australians both here and overseas.

Some may think the concept of proportionality sounds vague and malleable,
incapable of offering anything more than rhetorical comfort. However,
International human rights law offers a practical test for proportionality: does
the particular limiting measure represent the least restrictive means of
achieving the relevant purpose?

Moving forward: A charter of rights?

The problem is that neither our pre-legislative processes nor the scrutiny
mechanisms in the counter-terrorism legislation provide any incentive to apply
this test of proportionality.

If we are truly committed to creating counter-terrorism legislation which
safeguards human security without sacrificing human rights we need to seriously
evaluate the effectiveness of our legislative process, and how proposed grants
of new power to the executive are scrutinised.

In Canada, the United Kingdom, the United States and New Zealand questions
about how to balance human rights and human security have been assessed in the
framework of a domestic Bill of Rights. Australia, of course, does not have one,
and I have to say that I see no prospect of us getting one like the overseas
models, at least for a very long time.

The main obstacle to us doing so seems to be concern about the role of the
courts and unelected judges under a statutory charter of rights. I put that
debate aside, at least for the moment, to discuss how another aspect of a
Charter of Rights, the pre-legislation requirements, might shape the law making
processes, and foster a culture where all bills are systematically scrutinised
to determine whether they conform to recognised International human rights
obligations.

I don’t think anyone can seriously dispute the importance of the
scrutiny of proposed legislation by parliamentary committees which presently
occurs, but:

  • do these processes adequately integrate human rights principles into the
    policy and law making process?
  • do we have adequate mechanisms to test the human rights compatibility of
    counter-terrorism legislation?

These committees are vital mechanisms for public scrutiny. But they are also
subject to fundamental limitations; limitations which will potentially be
exacerbated by current proposals to reform the Senate Committee process.

The extent to which Committees do or do not consider the human rights
implications of proposed legislation is a matter of chance, not a matter of
procedure. Crucially, the Senate Committee process occurs after the legislation
has been drafted, the policy objectives formulated and, more often than not,
after politicians have publicly committed to the Bill’s
implementation.[6] There is no
obligation on the government to listen to or act on Senate Committee reports or
security legislation reviews.

In my view, it is no longer acceptable for human rights considerations to be
simply a chance incidental in the law making process. What we need now is a
debate about how to integrate human rights principles in the daily decision
making of the legislature, and to ensure that human rights principles are
reflected in powers which legislation gives to the executive and, perhaps most
contentiously, the courts or other reviewing tribunals.

Earlier this year the Attorney-General told The Daily Telegraph that instead of campaigning for charters of rights, state premiers could ask
for access to the HREOC to determine whether state laws are consistent with
Australia’s international obligations. [7]

This proposal may inadvertently give an inflated idea of HREOC’s
functions. While HREOC currently has the power to examine and report whether
federal laws are consistent with human rights obligations, it would be
logistically impossible for HREOC to scrutinise every federal Act with human
rights implications, let alone all the State and Territory Acts as well.

Unless we receive an invitation from the Attorney-General, HREOC is unable to
examine bills. So far as I know such a request has never been made. Perhaps
most importantly, there is no requirement for the Government to act on or
respond to recommendations made by HREOC.

Under the ACT Human Rights Act the Minister or MP presenting the Bill
is required to present a human rights compatibility statement, and a
parliamentary scrutiny committee independently assesses whether the Bill is
consistent with human rights. These provisions demand that the law making
process pay attention to human rights principles.

Even stronger provisions are contained in the proposed Victorian Charter
of Human Rights and Responsibilities Bill which provides that any member of
Parliament introducing a Bill must justify why the bill is compatible
with human rights or, in the event Parliament decides to pass legislation that
is inconsistent with its obligations, clearly explain the nature and extent of
the incompatibility.

The Attorney-General of New South Wales, in a recent
speech[8] discussing the prospect of a
Charter of Rights for New South Wales said that should one be pursued, it would
be devoted less to so called lofty principles than to things people take for
granted, for example freedom of expression, freedom of association, and the
right to vote. Although he did not mention it, I would hope the Attorney also
contemplated the rule of law including the central rules of natural justice and
fair trial.

Having made that point, the Attorney went on to say:

What we are talking about is not a Bill of Rights,
but a document that clearly out lines and preserves principles that the
Government should take into account when drawing up laws.

It seems to me that had there been a process which required the presentation
of a human rights compatibility statement along with the counter-terrorism bills
in 2002, 2003 and 2005, it is likely that a lot of the acrimonious and emotional
debate that occurred to bring about improved avenues of review, checks and
balances in the final legislation would not have been necessary.

A Melbourne academic, Dr Simon Evans, has suggested that human rights impact
statements (modelled on the existing regulatory impact statements which assess
the impact of legislative proposals on business) would have the potential to
assist Australian legislatures to assess the human rights impacts in the early
stages of the policy process.[9]

At a time when talk of a federal Bill of Rights is accompanied by an air of
unreality, there is a certain pragmatic appeal in avoiding debates about a
judicially enforceable Bill of Rights and focusing on integrating human rights
analysis into legislative and executive decision making.

While this proposal has pragmatic appeal, the problem with focusing
exclusively on integrating human rights principles in the pre-legislative
process is the continuing absence of a systematic mechanism to test the human
rights compatibility of existing legislation and the absence of remedies for
people who feel that their human rights have been breached. Ideally, the
prospect of a court ruling on human rights compatibility would help ensure the
legislature takes the human rights implications of Bills seriously.

Nevertheless a Charter, or a Parliamentary Guide to Best Practice could be
drawn up so as to leave the courts and judges out of the equation. On the
principle that it is better to make a partial gain than none at all, there would
be much value in putting in place a process that required attention to
fundamental human rights principles during the drafting and passage through
parliament of future legislation.

This would provide a statutory framework where the human rights
considerations are a crucial aspect of policy formulation. In this vision, human
rights principles would be a framework of analysis for good policy and good law,
not just a footnote to the law making process.

I leave you with that thought, but before I finish, could I just remind you
that HREOC is now calling for nominations for the 2006 Human Rights Medal and
Awards.

[1]Michael Ignatieff, New York
Times, 5 February 2002.

[2] Kofi Annan, Press Release SG/SM/7382, “Secretary-General Salutes
International Workshop on Human Security in Mongolia” (Ulaanbaatar, May
8-10 2000)

[3] Attorney-General
Philip Ruddock, “A new framework: Counter-terrorism and the rule of
Law”, Address to the Sydney Institute, 20 April
2004

[4] Note, however, that the
owner of an item seized by police may apply to a magistrate to request the
return of the thing, and, if the magistrate is not satisfied that the thing is
likely to be used by the owner or another person in the commission of a
terrorist act or serious offence, the magistrate must order the thing to be
returned to the owner. See section 3UG Crimes Act 1914
(Cth)

[5] See S Joseph
‘Australian Counter-Terrorism Legislation and the International Human
Rights Framework’ 27(2) UNSWLJ (2004) 428,
438.

[6] See further Simon Evans,
‘Improving Human Rights Analysis in the Legislative and Policy
Processes’, 29 Melbourne University Law Review (2004) 665

[7] Malcolm Farr,
‘State rights push wrong – Ruddock slams campaign’, The
Daily Telegraph, 7 April
2006.

[8] NSW Attorney-General, the
Hon. Bob Debus MP, Opening address for the Australian Human Rights Centre Annual
Public Lecture, Sydney, 16 May
2006

[9] Simon Evans,
‘Improving Human Rights Analysis in the Legislative and Policy
Processes’, 29 Melbourne University Law Review (2004) 665