All under control? Recent issues in Australia’s legal response to counter-terrorism

All
under control? Recent issues in Australia’s legal response to
counter-terrorism

By The Hon. John von Doussa QC, President, Human Rights and Equal Opportunity Commission

13 November 2006

Human Rights and Equal Opportunity Commission Forum, Sydney

---

I
would like to acknowledge the Gadigal people of the Eora nation, the traditional
owners and custodians of the land where we are meeting on
today.



I
would also like to thank our distinguished guests, the Attorney General, the
Honorable Philip Ruddock MP, and Professor George Williams for participating in
this forum.



BALANCING
NATIONAL SECURITY AND HUMAN RIGHTS

In
the post-September 11 world there has been vigorous debate about whether new
counter-terrorism laws strike the right balance between protecting people from
the threat of terrorism and preserving the rights and freedoms which are the DNA
of democracy.

I’ll
begin with the common ground. It is self-evident that terrorism is a gross
violation of fundamental human rights. The threat of terrorism is real. The
Government has both a right and a duty to assess the risk of a terrorist attack
and to take action to guard against the worst case scenario.

Yet
despite the real fears about a terrorist attack in Australia, we can agree that
such fears must not fuel for a ‘whatever it takes’ approach to
counter-terrorism laws. A ‘human rights free’ approach to
counter-terrorism would be unprincipled, counter-productive and anti-democratic.

The
question of how to strike the right balance between the interests of national
security and preserving and protecting human rights lies at the heart of
counter-terrorism debates.

WHY
MERITS REVIEW MATTERS

When
it comes to new counter-terrorism laws, HREOC has consistently emphasised the
need for review mechanisms to check that the exercise of executive decision
making powers are proportionate and necessary in the particular circumstances.
Under international human rights law the litmus test of proportionality should
be whether the power is the least restrictive way to protect public safety.



In our
view to provide an adequate audit of executive power, legislation needs to go
beyond judicial review to merits review so that the person who is the subject of
the exercise of power can challenge the factual basis upon which the decision
was made, and the proportionality of the action which is being taken. 
Importantly, when we look at issues like the proscription of terrorist
organisations the problem is not the fact that the power exists but that the
exercise of the power is not subject to adequate review.



While
the Attorney-General’s decision to proscribe a terrorist organisation is
subject to ADJR review, it is not subject to merits review. Merits review
matters because if the proscription decision is made on the wrong facts the
decision could violate the right to freedom of expression or association of
people who happen to have some innocent connection with the
organisation as a long list of
offences are derived from a person’s association with a ‘terrorist
organisation’.



THE
RIGHT TO A FAIR
TRIAL



So
far debates about counter-terrorism laws have focused on the expansion of
executive powers and the new role of the judiciary in issuing control orders and
confirming preventative detention orders. However, as people begin to be charged
and prosecuted for terrorism offences, the focus of debate is now turning to the
conduct of criminal trials.



The
right to a fair trial is ‘a central pillar of our criminal justice
system’.[1] Preserving the right to a fair trial is not only consistent with
Australia’s international obligations, and a proud common law tradition,
it is arguably a fundamental requirement of Chapter III Australia’s
Constitution.

THE
RULE AGAINST INVOLUNTARY
CONFESSIONS



Both
international human rights law and domestic criminal law are very clear that one
of the main features of a fair trial is that a person charged with a criminal
offence must not be forced to testify against himself or confess
guilt.[2]

Some
sections of the media attacked the recent decision of the Victorian Court of
Appeal in the Jack Thomas
case [3],
saying that it was a setback in the war on terror. But if you look closely, this
case was a routine application of the long-established principle that evidence
of a confession can not be admitted unless it was voluntarily made.

The
principle that admissions must be voluntary is there for two very simple
reasons. First, on principle we should not be encouraging the use of force in
the collection of evidence. Second, evidence obtained in a situation where a
person thinks they have no choice but to admit to certain behaviour is
inherently unreliable. As Chief Justice Gleeson recently observed the rule
against the admissibility of involuntary confessions is a necessary
inconvenience because ‘[t]he alternative: - receiving evidence of forced
confessions - is a price we are not willing to pay in order to secure
convictions.[4]

Our
evidence laws are vital in meeting the fundamental requirements of a fair trial.
Yet there are worrying signs that in a climate of fear previously well-worn
principles governing the treatment of suspects are being eroded.



One
international example is the recent introduction of the United States Military
Commissions Act 2006. This law undermines
the Western world’s commitment to a fair trial. The Act creates two tiers
of justice: one for ‘unlawful enemy combatants’ and another for
everyone else. Under the Act, suspected terrorists will be unable to challenge
the legality of their detention in civilian courts and evidence obtained by
coercion may be admitted in some circumstances.



Back in
Australia, the Attorney has expressed his view that sleep deprivation is not a
form of torture. The federal Minister for Justice and Customs, Christopher
Ellison, has gone a step further saying that while Australian laws prevented the
use of sleep deprivation in criminal investigations, sleep deprivation may be
permissible as part of a counter-terrorism
operation.[5]

Regardless
of how sleep deprivation is defined it is a coercive technique for obtaining
information that should not be admitted in a court of criminal justice. And it
is clearly a technique that amounts to inhuman and degrading treatment in breach
of human rights
law.



Currently,
Part 1C of the Crimes Act embodies the basic common law requirements to ensure
that the accused has a fair trial including: that a person must not be subject
to cruel, inhuman and degrading
treatment[6];
and informing a person of their right to see a
lawyer.[7]

Earlier
this year the Sheller inquiry into Australia’s counter-terrorism laws
considered – and rejected – proposals by the Commonwealth Director
of Public Prosecutions to amend the Crimes
Act 1914 (Cth)
‘to specifically allow the admissibility of evidence in circumstances
where the AFP have not complied with Part 1C overseas but have done all that
they could reasonably be expected to do to comply with the
requirements’.[8]

It
is now notorious that some foreign states have tortured suspected terrorists. In
the current climate, not only should suggestions to relax the existing
safeguards against cruel, inhuman and degrading treatment of suspects held
overseas be rejected, but new laws should clearly prohibit the admission of
evidence obtained by torture.



This is
not just a matter of principle, but a matter of practicality: mistreatment of
suspects casts a cloud of doubt over the veracity and voluntariness of any
admissions or confessions which are
obtained.



THE
RIGHT TO KNOW THE CASE AGAINST
YOU



A
second defining characteristic of the right to a fair trial is the right to know
the case against you. The right to know the case against you is so fundamental
that the United States Supreme Court recently said in Hamden
v Rumsfeld that
right of an accused to “be present for his trial and privy to the evidence
against him, absent disruptive conduct or consent” is “indisputably
part of customary international
law”.[9] 

In
this age of terrorism
the question of how to balance the interests of open justice and procedural
fairness against the public interest in protecting national security will be a
reoccurring issue in court
proceedings.



Under
the National
Security Information (Criminal and Civil Proceedings) Act
2004 evidence in
terrorism trials can be admitted in a closed hearing from which even the
defendant may be excluded, at least for part of the evidence. The Act provides
that, in considering whether to exclude information in criminal proceedings the
court must give greater weight to national security interests than any adverse
effect on the defendant’s right to a fair
hearing.[10]

While
the Court retains its inherent power to stay proceedings that may have a
substantial adverse effect on the defendant’s right to a fair hearing,
this may not be an adequate safeguard against unfairness. Firstly, in the
current climate trial, I believe there is a risk that trial judges may be unduly
deferential to the crown case. Secondly, the power to stay proceedings would be
of no comfort to a plaintiff who seeks a remedy in civil proceedings in respect
of executive action that is alleged to be illegal or an abuse of power. A stay
would simply defeat the action and leave the plaintiff without a
remedy.[11]

The
Courts have long had power to make orders to suppress security sensitive
evidence where its disclosure would be against the public interest. Yet in the
contemporary context of court proceedings in terrorism matters the question of
how to balance fundamental rights, like the right to know the case against you,
and the right to choose your lawyer against the public interest in protecting
national security is coming into much sharper focus.



At
the moment the Commonwealth is seeking a permanent injunction in the Supreme
Court of New South Wales restraining two lawyers – Mr Houda and Mr Lange -
from acting for a man accused for terrorism offences. The Commonwealth
application relies, in part, on the arguments that the lawyers’ obtained
access to confidential information which they should not have
seen and that the lawyers’ knowledge of this information creates an
untenable conflict between their duty to represent the interests of the accused
and their obligations to the Court and the Commonwealth.



In
preliminary proceedings the lawyers representing Mr Houda and Mr Lange sought
access to confidential materials in order to respond to the injunction
application.[12] While the judge stated he had no reason to doubt that Mr Houda and Mr
Lange’s legal representatives undertaking not to disclose the confidential
materials, his Honour held the risk of ‘inadvertent disclosure’ and
‘the real possibility of a threat to national security’ outweighed
the interests of disclosure to either the applicants legal representatives or a
court appointed special counsel.

The
question of how to strike the balance between open justice and national security
will always depend on the particular facts and circumstances of the case. In
extraordinary circumstances it may be necessary to suppress information because
of national security concerns. However, I think we need to be more creative
about how we remedy the possible adverse effect on the rights of defendants to
know and respond to the case against them.



One
possibility would be creating an office of the special advocate. A special
advocate is a specially appointed security cleared lawyer who can go
‘behind the curtain of secrecy’ and then act in the interests of a
party to proceedings in circumstances where that party, and the party’s
legal representative, have been excluded from attending closed hearings or
accessing certain evidence.



While
an office of the Special Advocate is not ideal, it may provide encouragement to
judges to appoint special advocates in cases where their presence may provide a
substantial measure of procedural justice not otherwise available.



THIS
ISN’T ABOUT WHO THEY ARE
...



Some
people say terrorists have forfeited their rights. Clearly terrorists have no
respect for human rights. But, as the United States Senator John McCain so
eloquently stated: ‘this isn’t about who they are. This is about us.
These are the values that distinguish us from our
enemies’.[13]

In
Australia there is no Charter of Rights requiring the Courts to consider whether
counter-terrorism laws comply with human rights principles. However, Australian
criminal courts play a vital role in protecting the right to a fair trial and
this bulwark against injustice must not be compromised.

What
we also need to remember is that promoting and preserving human rights is a
vital counter-terrorism strategy. An essential strategy in countering the
extremism that breeds terrorism is to win ‘the contest of
ideas’[14] by rigorously defending the basic human rights and freedoms which form
‘the bedrock of dignity and democracy that make our societies worth
protecting’.[15]

This
task becomes infinitely more difficult if we undermine our own human rights
credentials. In a climate where many members of the Muslim community are fearful
that counter-terrorism laws will unfairly target Muslims, the old adage that
justice must not only be done, but be seen to be done is more
relevant than ever.



The
recent Sheller Report warned that ‘misunderstandings and
fearfulness’ among Australia’s Muslim community will ‘tend to
undermine the aims of the security legislation’. The report
commented:

The
negative effects upon minority communities, and in particular the escalating
radicalisation of young members of such communities, have the potential to cause
long term damage to the Australian community. It is vital to remember that
lessening the prospects of ‘homegrown’ terrorism is an essential
part of an anti-terrorism
strategy.[16]

Misunderstandings
and fearfulness are not a reason to resile from legislative action to prevent
terrorism. One way to help limit these negative effects is to make sure that
counter-terrorism powers are subject to judicial review and merits review. Such
measures will guard against abuse, error and illegality and help reassure the
Muslim community that the laws will not be exercised in an arbitrary or
discriminatory way.

More
broadly, we need to be conscious of the corrosive effect of fear on community
relations in Australia. In some pockets of public opinion there is a virulent
strain of anti-Muslim prejudice fuelled by the erroneous belief that all Muslims
are, by virtue of faith, terrorists or terrorist sympathisers. Such prejudices
and stereotypes must be dispelled.

In
a tense and sometimes hostile environment, experiences of discrimination can
alienate and isolate members of the Muslim community. Clearly we must also work
to address any extremist elements that exist within a minority of
Australia’s Muslim population with strategies that promote inclusion,
tolerance and respect for human rights.

The
Government has recognised the need to address these problems by granting $4.4
million to HREOC over the next four years to bring together law enforcement
agencies and Muslim communities to address issues of conflict and discrimination
and to promote human rights education in Muslim communities.

These
challenges reach far beyond the legal response to terrorism. Yet the way our
laws respond to terrorism sends a crucial message about the value Australia, as
a democratic nation, places on fundamental rights and freedoms.

---

[1]Dietrich v the Queen (1992) 177 CLR 292, 298
(Mason CJ, McHugh
J).

[2] ICCPR, Art 14(1)(f)

[3]R v Thomas [2006] VSCA
165 (18 August 2006)

[4] Chief Justice Murray Gleeson, ‘A Core Value’, paper presented at the
Judicial Conference of Australia Annual Colloquium, 3 October 2006.

[5] ‘Row over sleep deprivation, torture’, Sydney
Morning Herald, October 11
2006.

[6] Section 23

[7] Section 23G.

[8] Security Legislation Review Committee, Report of
the Security Legislation Review Committee, (2006) Report of the Sheller
Inquiry, [17.5], [17.11].

[9]Salim Ahmed Hamdan v
Donald H Rumsfeld, Secretary of State 546 U.S. (2006)

[10]National
Security Information (Civil and Criminal Proceedings) Act
2004, s31

[11] It is noted that s 19 (5) of National
Security Information (Civil and Criminal proceedings) Act 2004 states that in considering
whether to order the stay of a civil proceeding the court must consider the
extent of any financial loss that a party would suffer as a result of
proceedings being stayed, and (b) whether a party has reasonable prospects of
obtaining a remedy in the proceeding; and (c) any other matter the court
considers relevant.

[12] Regina v Khazaal
[2006] NSWSC 1061

[13] US Senator John McCain, ‘McCain Statement on Detainee Amendments’,
press release, Wednesday 5 October 2006

[14] George Williams, ‘Running the Risk of a Raft of Overreactions’, The
Australian, 4 September
2006.

[15] Professor David Feldman, ‘The roles of Parliament in Protecting Human
Rights: A view from the UK”, address given at the Human Rights and
Legislatures Conference, Melbourne University, 20-22 July 2006.

[16] Security Legislation Review Committee, Report of the Security
Legislation Review Committee, (2006) Report of the Sheller
Inquiry, [10.97].