Reconciling human rights and counter-terrorism – a crucial challenge

Reconciling human rights and counter-terrorism – a crucial challenge

The Annual James Cook University Mayo Lecture

Delivered by

The President of the Human Rights and Equal Opportunity Commission (HREOC), John von Doussa QC

12 September 2006

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I would like to acknowledge that we are meeting on the traditional country of the Girringun people and pay my respects to their elders past and present.

Defending human rights in the age of terrorism

It is now five years since the tragic events of September 11. Since then there have been 23 major terrorist attacks including the Bali bombings and the ‘home-grown’ terrorist attacks in London.1 We are locked in a dark and difficult struggle with those that seek to attack not just our lives but  our way of life.

The crucial challenge facing Australia – and indeed all democratic nations – is how to effectively respond to the threat of terrorism without abandoning the fundamental human rights principles that are the hallmark of free and democratic societies.

Striking the right balance between national security and human rights is crucial for both the success of our counter-terrorism strategies and to maintain the tolerant and democratic ideals of our multicultural country.

Yet in the current climate there appears to be a disturbing trend to undermine any serious attempt to analyse the human rights compatibility of counter-terrorism legislation.

Debates about counter-terrorism laws are often characterised as an argument between the realists – who appreciate the need for tough new counter-terrorism legislation – and the out of touch – who fail to recognise the gravity of the terrorist threat.

Those who are concerned about the human rights compatibility of counter-terrorism laws are accused of defending terrorists or failing to take the threat of terrorism seriously.

Such characterisations are both inaccurate and unproductive. It is self-evident that terrorism is a gross violation of fundamental human rights. Only the misguided or the bad would suggest otherwise. The threat of terrorism is patently legitimate. The Government has both a right and duty to take action to protect its citizens.2

Equally, I don’t believe anyone would seriously suggest that the threat of terrorism justifies the wholesale abandonment of the democratic rights and freedoms embedded in our legal system.

The Commonwealth Government has consistently said that it recognises the need to balance counter-terrorism laws with human rights and that Australia’s national counter-terrorism policies must embody the democratic values Australia seeks to protect.

However, my concern is that too often counter-terrorism laws have been developed without properly considering the potential human rights implications.  I shall return to this topic towards the end of this address.

This is a shame because it overlooks the ability of simple safeguards – like merits review or judicial review – to ameliorate fears that the new laws might be applied in a way that goes too far.  

These procedures would operate as checks and balances to ensure that the exercise of wide-ranging new executive powers are  lawful , necessary and proportionate in the circumstances of the particular case.

Some might ask ‘why worry about human rights’? Why do we need to preserve human rights in the face of those who show disregard and contempt for human rights?

The answer is both principled and pragmatic – we must maintain the moral and ethical high ground.

Terrorism is an ideologically and politically motivated assault on the democratic rights and freedoms that we hold dear. An essential strategy in countering the extremism that breeds terrorism is to win ‘the contest of ideas’3 by rigorously defending the basic human rights and freedoms which form ‘the bedrock of dignity and democracy that make our societies worth protecting’.4

However, this task becomes infinitely more difficult if we undermine our own human rights credentials. As the United Nations Secretary General Kofi Annan has observed:

…compromising human rights … facilitates achievement of the terrorist’s objective - by ceding to [them] the moral high ground, and provoking tension, hatred and mistrust of government among precisely those parts of the population where he is most likely to find recruits. Upholding human rights is not merely compatible with successful counter-terrorism strategy. It is an essential element.5

The recent Security Legislation Review Committee Report (the Sheller Report) expressed serious concerns about the way counter-terrorism laws were perceived by some members of Australia’s Muslim and Arab communities.  The Report found that misunderstandings and fearfulness tend to undermine the effect of security legislation, adding:

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.6

This does not mean that we should resile from passing counter-terrorism laws for fear of causing offence to some sections of the community.  But it is another good reason to make sure that counter-terrorism laws contain safeguards against abuse, error and illegality.

It is vital that when we introduce new and extraordinary powers with the potential to infringe fundamental human rights that these powers are subject to quick, effective and full review by independent courts of the land.

It is only in this way that Australia’s Muslim community, whose members are being caught up in the new powers, will have any confidence in the government's pronouncements that the laws are not being unfairly targeted at them. If that confidence cannot be built, the new powers might prove counter productive.

Balancing human rights and national security

Despite the practical utility of integrating human rights principles into counter-terrorism strategies there is a persistent and popular misconception that international human rights laws are inflexible, esoteric principles which hamstring government efforts to effectively respond to danger.

This idea that human rights are antithetical to national security fails to recognise the fact that international human rights law was forged in the wake of devastating periods of global conflict and already strikes a balance between security interests and the rights which are considered fundamental to being human.

It recognises that sometimes individual rights need to be balanced against the need to protect collective security. For example, article 12 of the ICCPR which protects the right of freedom of movement can be subject to restrictions to protect national security if – and this is the important qualification –the restriction in question is the least intrusive means of effectively protecting national security..7

In other words, 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. This approach was adopted by the Sheller Inquiry, who accepted HREOC’s submission, that counter-terrorism laws must be proportionate to the aim of achieving national security.

Article 4 of the ICCCPR also envisages that human rights may be justifiably infringed by States in times of public emergency, although to date Australia has not sought to rely on Article 4. Of course some rights – including the right to life and the right not to be subject to torture - cannot be suspended in any circumstances.  The Article permits derogation from key human rights protections – like the right to liberty and the right to freedom of association –'in times of public emergency which threatens the life of the nation'.8

In 2004 the House of Lords accepted that the threat of terrorism may constitute a ‘public emergency’.9 However, it also emphasised that ‘measures taken by a member state in derogation of its obligations under the Convention should not go beyond what is strictly required by the exigencies of the situation’.10

So ultimately the litmus test for the human rights compatibility of counter-terrorism is proportionality.11 While the concept of proportionality may sound like a vague, malleable creature, offering only rhetorical comfort, International human rights law has posed a practical test: is the limiting measure the least restrictive means of achieving the relevant purpose?

Counter-terrorism legislation in Australia

The critical question of whether Australia’s counter-terrorism laws meet this test is too often sidelined as the media debate the guilt or innocence of suspected terrorists.

This culture of trial by media is a recipe for outrage when the courts reach a different verdict. The decision of the Victorian Court of Appeal to quash the convictions against Jack Thomas for receiving funds from a terrorist organisation and possessing a falsified Australian passport provoked fierce debate about whether the decision was a moral miscarriage or an act of fidelity to well worn legal principles.12

The subsequent decision of a Federal Magistrate to issue an interim control order imposing certain obligations on Thomas further inflamed an already acrimonious debate.  I do not propose to discuss either the merits of Jack Thomas’ control order or the prospects of the application for retrial – these are questions for the courts.

However, it is worth saying something about the Victorian Court of Appeal’s decision and the human rights compatibility of control orders. But first it is worth outlining how dramatically the legal landscape in Australia has changed since September 11.

Australia – like other Western nations – has responded to the threat of terrorism with a raft of new laws. Before 2002, terrorism was not even an offence under the Criminal Code.

Since 2001 there have been three major packages of counter-terrorism legislation.

In the aftermath of September 11, the government introduced the Security Legislation Amendment (Terrorism) Act 2002, which criminalised preparing, planning or committing a ‘terrorist act’ by creating a range of new terrorism offences, including ones that derive from being associated in different ways with an entity that is proscribed as a ‘terrorist organisation’.  Since 2002, 24 people have been charged under the amended Criminal Code provisions.13

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 Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 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.

The detention is not limited to persons suspected of committing an offence or to those with some involvement in planning a future offence. The provisions are aimed at anyone who (wittingly or unwittingly) is able to ‘substantially assist in the collection of intelligence that is important in relation to a terrorism offence’.14

Although to our knowledge no detention warrants have been issued, HREOC remains concerned the legislative framework does not provide adequate protection against arbitrary detention, particularly in light of the potential for ‘repeat warrants’ to be granted. This year the legislation was re-enacted with a ten year sunset clause. 15

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 states have enacted interlocking legislation, albeit with some significant and well-publicised variations.

The effect of new counter-terrorism laws

Five years after September 11, Australia now has a web of counter-terrorism laws which deliver unprecedented new powers to the executive and create a tough new range of offences which criminalises anyone who is knowingly or recklessly involved in preparing or planning a terrorist act.

While there have been reviews of the operation of particular aspects of the new laws, most notably the recent Sheller Inquiry, there has been no regular and independent analysis of the overall operation of Australia’s counter-terrorism regime.

I believe regular and independent review is vital given the potential of some laws to disproportionately curtail fundamental human rights like the right to liberty and the right to a fair trial.

The importance of independent review is only exacerbated by the lack of adequate judicial review mechanisms for some of the new executive decision making powers and the inability of a person to test these laws against the human rights standards set out in a Bill of Rights.

One option is to have an ‘Independent Reviewer’ based on the United Kingdom model. The Independent Reviewer reviews the operation of UK counter-terrorism laws including an annual review of the implications of any amendments proposed by the Secretary of State on the operation of the existing laws. 

The expansion of executive power

One of the disturbing trends in many new counter-terrorism laws is the expansion of executive decision-making without corresponding checks and balances.

In a recent speech High Court Chief Justice Gleeson observed:

the development in the Australia community of a cultural expectation that those in authority are able and willing to justify the exercise of power is one of the most important aspects of modern public life.16  

Yet too often counter-terrorism laws powers are not subject to scrutiny where an exercise of power must be justified..

Many executive decision-making powers under counter-terrorism laws – including action taken under the ASIO Act, the Telecommunications (Interception) Act 1979 and the decision to issue a preventative detention order -  are  all excluded from review under Schedule 1 of the Administrative Decisions (Judicial Review) Act 1977.

While excluded decisions can still be the subject of judicial review at common law under section 75(v) of the Constitution and the Judiciary Act 1903 (Cth), this is the poor cousin of ADJR review. A crucial difference is that the ADJR enables the subject of a decision to obtain a written statement of the reasons for the decision.  Not so with common law judicial review which is simply an arid process of checking for legal errors.

Of course, to provide a full 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. 

The proscription regime

One example of executive power which is not subject to any meaningful review process is the Federal Attorney-General’s power to proscribe a ‘terrorist organisation’. This power can be exercised where the Attorney is 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 could violate the right to freedom of expression or association of innocent people who happen to have some connection with the organisation17as a long list of offences are derived from a person’s association with a ‘terrorist organisation’.

Significantly there is no merits review of the Attorney-General’s decision to proscribe a terrorist organisation so there is no way to test the veracity of the facts on which the order was made.

Ideally, in the interests of transparency and fairness the decision to proscribe a terrorist organisation – unless the urgency of the situation dictates to the contrary – should be approved in advance by a judicial officer and subject to ongoing judicial oversight.

The role of the courts

Judicial scrutiny ensures that justice is being seen to be done; an objective that is particularly important in light of the growing sense of alienation and distrust of authority in the Muslim community.

So far I have focused on the need for adequate checks and balances on the exercise of the new executive decision-making powers.  These safeguards are important because the new powers operate outside the framework of the criminal justice system.

The criminal justice system on the other hand already contains many built in safeguards – like the laws of evidence – which help ensure that no matter how heinous the crime the alleged offender will get a fair trial.

R v Thomas [2006] VSCA 165

The decision by the Victorian Court of Appeal to quash the convictions of Jack Thomas18 has been cast as a setback in the war on terror. Behind the hyperbole, this case involves a routine application of long established principles relating to the admissibility of involuntary confessions in a criminal trial that can be traced back to the High Court’s decision in McDermott v R (1948) 76 C.L.R. 501 .

The Court of Appeal found that, as a result of the conditions in which Thomas was detained in Pakistan, the threats made that if he did not cooperate he would be indefinitely detained in either Pakistan or Guantanamo Bay, as well as threats made against his family, his admissions could not be characterised as voluntary.

Our existing evidence laws have always played a vital role in meeting the fundamental requirements of a fair trial. If an Australian citizen is suspected of committing a terrorist offence it does not matter whether that person is interrogated here or overseas – we should not allow torture or duress to extract a confession that may be unreliable.

It is worth noting that during the debate over the Anti-Terrorism Bill (No.2) (2005) it was taken for granted that if an alleged terrorist was ultimately charged with a terrorist offence, the charge would be determined according to the well-established processes of the criminal law.  If a consequence of the Thomas prosecution is a proposal to challenge the law of evidence governing criminal trials then that is a matter for Parliament, not the Courts, and the proposal will open a whole new debate about what constitutes a fair trial.

Control orders – the Australian experience

The controversy surrounding the Victorian Court of Appeal’s decision was quickly followed by news that the Australian Federal Police – with the consent of the Attorney General – had successfully applied to the Federal Magistrate’s Court for an interim control order.

Control orders are extraordinary powers for extraordinary times. 

The severity of obligations imposed by a control order can range from a prohibition or restriction on the person visiting a particular place to  wearing a tracking device, to preventing a  person from using or accessing certain forms of communication technology (including the internet), to a requirement that a person remain at specified premises at specified times each day.

Depending on the days and times specified, the order could constitute house arrest.  This could amount to a deprivation of liberty without trial in breach of the prohibition on arbitrary detention (article 9(1) of the ICCPR.

Control orders may also intrude upon other fundamental rights including the fundamental rights to freedom of expression (article 19 of the ICCPR), to freedom of movement (article 12 of the ICCPR) and to privacy (article 17 of the ICCPR).

As I discussed earlier, these rights are not absolute. Division 104 of the Criminal Code authorises the issue of control orders for the purpose of “protecting the public from a terrorist act”. What we need to check is if, in the particular circumstances of the case, a control order is a necessary and proportionate  way of protecting the public from a terrorist act.

Some commentators have argued that given the scope of other counter-terrorism laws including the exhaustive list of preparatory offences which are now contained in the Criminal Code, the need for control orders has not been adequately justified.

I am not persuaded by this argument. We are facing an international terrorist regime of unknown proportions and dimensions. We do not know what the risk is or will be.

The government will be severely criticised, and rightly so, if it does not have in place measures that will deal with the most serious risks that might arise in an emergency.

But we do need to make very sure that the laws contain adequate safeguards and review mechanisms to check whether, at the time the order was issued, the response was necessary and proportionate to the level of threat.

Given the potential of a control order to infringe fundamental rights it is vital that procedural safeguards include a rigorous test of proportionality. The problem is that under the current control order regime this test is too weak.

The conditions imposed by a control order, as the result of amendments made to the original Bill, are now made by a judge of a federal court, and allow for ongoing review.

In order to make an interim control order the issuing court must firstly be satisfied that making the order would substantially assist in preventing a terrorist act; or the person has provided training to, or received training from, a listed terrorist organisation.19

Secondly, the issuing court must be satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the person is reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act.20 

Whilst this requirement raises issues of proportionality, it omits one crucial element. Under international human rights the test of proportionality is whether the limiting measure is the least restrictive means of achieving the relevant purpose – in this case protecting the public from terrorism.

In practice the least restrictive means test would require the court to consider whether, in the vast armoury of counter-terrorism laws that already exist, there was an equally effective way to protect the public from a terrorist act which would have a less intrusive impact on fundamental rights and freedoms.

The Senate Committee Inquiry into the Anti-Terrorism Bill (No.2) 2005 recommended that the least restrictive means test be added.  Unfortunately it was one of a number of important recommendations that never made it into the final text.21

The right to a fair trial

While judicial oversight is critically important, it can be meaningless if the person under a control orders does not know the case against him. And in criminal proceedings even more serious issues arise if evidence in the case against a defendant is not made known to the defendant.

The application of the National Security Information (Criminal and Civil Proceedings) Act 2004 (The National Security Information Act) raises important issues about the right to a fair hearing and the right to an effective remedy.

This Act could permit a closed hearing from which even the defendant may be excluded, at least for part of the evidence. This could seriously diminish the defendant’s ability to fully respond to the case.

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”.  22

The prospect of convicting someone of one of the most serious crimes in the calendar when the case against the defendant is not fully revealed even to the defendant and the defendant’s lawyers is a frightening one – one likely to undermine public confidence in the fairness of the legal system.

The Act does provide that where the court considers unfairness may result from nondisclosure of information it may stay the proceedings. But two things may be said about that. The first is that there must be a high probability that where a person is on trial for a terrorist offence a court is likely to show deference to the Crown case, and be slow to use the power.

The second is that the National Security Information (Civil and Criminal Proceedings) Act 2004 (The National Security Information Act)is not confined to criminal proceedings. In 2005 the Act was amended to cover civil proceedings – including control order applications. 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.

The result is that there are now many situations where important decisions could be made and the person whose rights are at stake is either not allowed to be present or not allowed to be informed of all the evidence against him.

Under the National Security Information Act the proceedings operate as follows: Evidence that ‘is likely to prejudice national security’ must be brought to the attention of the federal Attorney General.

The Attorney General has the power to issue a non-disclosure certificate that summarises or blacks out information that is likely to prejudice national security.23 Where a witness might compromise national security by his or her mere presence, the Attorney-General may a certificate prohibiting the witness appearing.

If the Attorney-General issues a certificate restricting access to evidence, the Court must adjourn the principal hearing and hold a separate closed hearing to decide whether to disclose, withhold, summarise or black out (redact) the information.24

In so doing so the Court is directed to give the greatest weight to the possible prejudice to national security.25 

While it is important that national security should be given great weight, it is also important that courts retain a flexible discretion to consider the circumstances of each particular case. Crucially, I believe the Court should also consider the question: “would the order requested have an adverse effect on fundamental human rights of a party”? 

I accept that in extraordinary circumstances it may be necessary to exclude information – or even the defendant – 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 the party.

One possibility would be the introduction of a special advocate procedure which has been adopted in Canada and the United Kingdom. A special advocate is a specially appointed security cleared lawyer who acts in the interests of a party to proceedings when that party, and the legal representative, have been excluded from attending closed hearings or accessing certain evidence. The special advocate is able to access excluded materials and make submissions in the party’s interest but can not communicate with the relevant party about the material.

While the Special Advocate procedures are not ideal, they may provide a substantial measure of procedural justice not otherwise available.

Control orders in the United Kingdom

Although Australia’s regime of control orders bears a strong similarity to the British system, it lacks the safeguards provided by Human Rights Act 1998 (UK).

In the United Kingdom different procedures are followed for the issuing of non-derogable control orders and derogable control orders, to ensure that the control order regime complies with the Human Rights Act 1998 (UK).

A non-derogable control order can impose obligations on an individual so long as they are not incompatible with the individual’s right to liberty under Article 5 of the European Convention of Human Rights.26  A derogable control order on the other hand can impose obligations which restrict an individual’s right to liberty.

The process for obtaining a derogable control order is more onerous than the process for obtaining a non-derogable control order.  It must be apparent to the Court that there is a public emergency that threatens the life of the nation and material which establishes (on the balance of probabilities) that the subject of the proposed order is or has been involved in terrorism related activity. And finally and  there must be reasonable grounds for believing that imposing restrictions which derogate from the subject’s right to liberty are necessary to protect the public from the risk of terrorism. 27

The UK Government has not yet sought a derogable control order, but it has applied for, and been granted, a number of non-derogable control orders. 

Under the UK control order regime, because of the Human Rights Act and the European Convention on Human Rights that it applies, the Courts are capable of testing whether the obligations imposed by a non-derogable control order are consistent with human rights standards.

In Secretary of State for Home Department v JJ & others28 the Court of Appeal upheld the decision of the trial judge that non-derogable control orders which confined the respondents to their flats for eighteen hours a day constituted a deprivation of liberty, and were therefore invalid.

The cases were remitted to the Home Secretary to devise a new non-derogable control order with  obligations which were compatible with the Human Rights Act. 

Towards a bill of rights?

Dr Angela Ward has argued that the key difference between counter-terrorism laws in the United Kingdom and Australia is that the United Kingdom has overarching legislation (in the form of the Human Rights Act 1998) ‘designed to ensure that all arms of government act proportionately’.29

In Australia the prospect of a Bill of Rights is – to understate the case – politically improbable.

 What I would like to do is put aside arguments about unelected judiciaries and focus on how another aspect of a Charter of Rights – the pre-legislative requirements for parliamentary scrutiny – could effectively integrate human rights principles into the law and policy making process.

While no one would deny the important of scrutiny of proposed legislation by parliamentary committees, this process is subject to fundamental limitations.  The extent to which federal 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 federal 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.  There is no obligation on the government to listen to or act on the Committee’s recommendations.

There is concerning evidence – found not only in the text of the laws but also in the practices of our parliament – that the question of the human rights compatibility of counter-terrorism laws receives inadequate attention.

The Sheller Report observed that submissions made by government agencies ‘at times passed over the invasive effect of particular legislation on human rights, and said little about particular steps that might have been taken by their agencies to alleviate such effects’ .30

Under the Victorian Charter of Rights and Responsibilities the Victorian Government can not longer overlook the human rights impact of new laws and policies. This is because under the Charter:

• where decisions need to be made about new laws or major policies, submissions to Cabinet must be accompanied by a Human Rights Impact Statement;
• an MP or the Attorney must present a statement of human rights compatibility to parliament on the introduction of a Bill.
• a parliamentary scrutiny committee must independently assess the compatibility of the Bill with human rights; and
• Perhaps most importantly, parliament must publicly explain its actions in the event that it decides to enact or maintain legislation that is inconsistent with human rights principles.

As Professor David Feldman recently observed ‘the beneficial effect of human rights on public decision making does not depend on judges’.31 The need to make sure that legislation is, wherever possible, compatible with human rights is not a matter which should be left to chance.

We need parliamentary processes that guarantee that Australia 's human rights obligations are taken seriously during the law and policy making process. And in the event that the Parliament decides to pass legislation that is inconsistent with human rights obligations, it should be required to clearly justify its reasoning.

Upholding human rights principles is a vital element of an effective counter-terrorism strategy.

Striking the right balance between national security and human rights is not easy. But to improve our chances of getting the balance right we need to take rights seriously.

A good way of achieving this would be for Parliaments to follow a process that requires the consideration of human rights principles in the formulation of new laws and policies.

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