SUBMISSION to the Parliamentary Joint Committee
Legal
SUBMISSION TO THE PARLIAMENTARY
JOINT COMMITTEE ON ASIO, ASIS AND DSD
Introduction
1. The Human Rights
and Equal Opportunity Commission ("HREOC") is established by
the Human Rights and Equal Opportunity Commission Act 1986. It
is Australia's pre-eminent body for the protection of human rights.
2. HREOC's powers
are set out at s 11 of the Human Rights and Equal Opportunity Commission
Act 1986 ("HREOC Act") and include the power to promote
an understanding and acceptance, and the public discussion of human rights
in Australia. [1]
The Terrorism Bills
3. In February and
March 2002 the Government introduced a "suite" of terrorism
bills following the terrorist attacks in the USA of September 11, 2001.
Those bills are as follows:
- Security Legislation
Amendment (Terrorism) Bill 2002
[No 2]; - Suppression
of the Financing of Terrorism Bill 2002;
- Criminal Code
Amendment (Suppression of Terrorist Bombings) Bill 2002;
- Border Security
Legislation Amendment Bill 2002;
- Telecommunications
Interception Legislation Amendment Bill 2002;
- Criminal Code
Amendment (Espionage and Related Offences) Bill 2002; and
- Australian
Security Intelligence Organisation Legislation Amendment (Terrorism)
Bill 2002
("the ASIO Bill").
4. All of those bills,
save for the ASIO Bill, were referred to the Senate Legal and Constitutional
Legislation Committee. The ASIO Bill was referred by the House of Representatives
to the Parliamentary Joint Committee on ASIO, ASIS and DSD. The Senate
Committee published its two reports into the terrorism bills tabled on
8 and 10 May 2002. The report tabled on 10 May deals only with the Criminal
Code Amendment (Espionage and Related Offences) Bill 2002 whereas
the report of the 8 May 2002 concerns the earlier bills.
5. HREOC's overwhelming
concern is to ensure that the new terrorism laws do not, of themselves,
breach human rights standards and do not allow for the breach of human
rights standards. The human rights standards which HREOC wishes to apply
to the terrorism bills are contained in the following Conventions:
- International
Covenant on Civil and Political Rights [2] ("ICCPR");
- The Convention
on the Rights of the Child [3] ("CROC");
and
- The Convention
Against Torture ("CAT").
6. Australia has
acceded to each of the above conventions and they are binding upon it.
The first two international instruments have been incorporated into Australian
domestic law. Each of the three instruments has its own enforcement mechanism
in international law to which Australia, having acceded to the instrument
concerned, is subject.
Terrorism Offences
7. The ASIO Bill
builds on the introduction of a new category of offences, known as "terrorism
offences", which it is proposed be inserted as Part 5.3 of the Criminal
Code Act 1995. The new Part 5.3 of the Criminal Code is contained
in the Security Legislation Amendment (Terrorism) Bill 2002 [No.
2].
8. The new offences
include:
- Terrorist acts
- where in order to advance "a political, religious or ideological
cause" serious harm is done to a person, or serious damage is done
to property, or a person's life is endangered, or a serious risk to
the health or safety of the public is created, or there is serious disruption
to an electronic system for information, telecommunications, finance
or serious disruption to systems for government services, public utilities
or transport;
- Providing or receiving
training connected with terrorist acts;
- Directing organisations
concerned with terrorist acts;
- Possessing things
connected with terrorist acts;
- Collecting or
making documents connected with terrorist acts; and
- Acts done in
preparation or planning of terrorist acts.
9. In addition there
is provision for the Minister (proposed to be the Attorney-General) to
proscribe organisations. Certain types of involvement with a proscribed
organisation are offences:
- Directing the
activities of a proscribed organisation;
- Receiving funds
for or making funds available to a proscribed organisation;
- Membership of
a proscribed organisation;
- Provision of
training or training with a proscribed organisation; and
- Assisting a proscribed
organisation.
Summary of the ASIO Bill
10. The ASIO Bill
provides a mechanism for the gathering of intelligence in relation to
terrorist offences. That mechanism is the use of a warrant to arrest or
bring a person before a prescribed authority and compel them to answer
questions.
11. The ASIO Bill
inserts "terrorism offence", as defined in Part 5.3 of the Criminal
Code, into the definition of "politically motivated violence"
in s4 of the Australian Security Intelligence Organisation Act 1979
("the ASIO Act").
12. To gain a warrant
the Director-General of ASIO must approach the Minister for his or her
consent to such a warrant: s34C(1). To consent the Minister must be satisfied,
"that there
are reasonable grounds for believing that issuing the warrant to be
requested will substantially assist the collection of intelligence that
is important in relation to a terrorism offence." (s 34C(3)(a))
13. A warrant may
be for the person to attend before a prescribed authority or for the arrest
and detention of the person: s34D(2). If the warrant is for an arrest
then the Minister must be satisfied that there are reasonable grounds
for believing that if the person is not immediately arrested and detained
he or she may alert a person involved in a terrorism offence, may not
appear before a prescribed authority or may destroy or damage a thing
required under the warrant to be produced: s34C(3)(c).
14. After the Minister has consented the Director-General must approach
a prescribed authority for a warrant to be issued: s34C(4). Prescribed
authorities include Federal Magistrates and certain members of the Administrative
Appeals Tribunal: s34B(1)
15. Each warrant
issued under the new Part III will,
"authorise
[ASIO] subject to any restrictions or conditions, to question
the person before a prescribed authority by requesting the person to
do either or both of the following:
(i) give information
that is or may be relevant to intelligence that is important in relation
to a terrorism offence;
(ii) produce
records or things that may be relevant to intelligence that is important
in relation to a terrorism offence." (s34D(5)(a))
16. Each warrant
may only be for a 48 hour period (s34D(2)(b)(i)) but there is no restriction
on the further grant of warrants of detention. That is, once a person
is in custody the Director-General may continue to apply for an unlimited
number of warrants without the person first being released.
17. Questioning of
a person the subject of a warrant is by officers of ASIO and must occur
before a prescribed authority: s34D(2)(b)(i) and s34D(5)(a).
18. The person the
subject of the warrant,
"... must
not fail to give any information requested in accordance with the warrant."
A failure to give
such information is an offence that carries a penalty of 5 years imprisonment:
s34G(3).
19. A person detained
must not contact "anyone at any time" while detained: s34F(8).
The only exceptions to the rule are those persons specified in the warrant,
and the Inspector-General of Intelligence and Security or the Commonwealth
Ombudsman in order to make a complaint. There is no right to contact a
lawyer or family member unless such contact is specifically allowed by
the warrant. The inclusion of such persons in the warrant is in the discretion
of the prescribed authority who issues the warrant: s34F(1).
20. During questioning
a person cannot decline to answer a question on the grounds that it may
incriminate him or her: s34G(8)(b). Any answers given are inadmissible
in criminal proceedings against the person except for terrorism
offences or offences against s34G.
21. There are a number
of other notable aspects to the proposed warrants regime:
- The warrant powers
are equally applicable to children as they are to adults;
- It is an offence
to give false or misleading statements while being questioned, carrying
a penalty of 5 years;
- There is no provision
requiring officials to alert the next of kin of the person subject to
the warrant following his or her arrest and/or detention;
- There is no provision
requiring the detention to be reviewed by a judicial officer nor the
ability of the person to be released on bail;
- A reverse onus
applies in relation to defences of not having relevant information or
not possessing relevant records or things;
- There is a general
protection against "cruel, inhuman or degrading treatment"
while the subject of a warrant;
- There is the power
to conduct an ordinary or strip search of a person; and
- There is no power
to strip search a child under 10 years old but a person between the
ages of 10-18 may be strip searched in the company of a parent or guardian.
National Security Concerns
- Striking a Balance
22. HREOC is concerned
that the ASIO Bill - as with the other terrorism bills - strikes an appropriate
balance between the protection of individual rights and national security.
That balance is inherent in human rights instruments such as the ICCPR.
It was uppermost in the minds of the drafters and has been revisited often
by the Human Rights Committee established under the ICCPR when hearing
communications alleging breaches of the Covenant.
23. The drafters
of the ICCPR clearly envisaged that there would be occasions when human
rights as set out in the Covenant would be justifiably infringed by States
in times of public emergency or war. It set forth a procedure for the
derogation from such rights in Article 4 of the ICCPR. Article 4 provides
for derogation from human rights protections "in times of public
emergency which threatens the life of the nation". That power of
derogation is carefully circumscribed so as to avoid the arbitrary disregard
for human rights:
- The public emergency
must threaten the life of the nation;
- The public emergency
must be publicly proclaimed;
- The measures must
be strictly required by the exigencies of the situation;
- The measures
cannot be inconsistent with other requirements of international law;
and
- The measures
must not involve discrimination solely on the grounds of race, sex,
colour, language, religion or social origin.
24. Certain articles
may not be derogated from whether in peacetime or war. Those articles
include Article 7 which prohibits torture or cruel, inhuman or degrading
punishment or treatment. Other articles which may not be derogated from
include the right to life (Article 6), guarantee against retrospective
criminality (Article 15) and freedom of thought, conscience and religion
(Article 18).
25. Where a State
has not derogated from its obligations under the ICCPR it may still take
steps to protect national security in times of public emergency. Where
there is express or implied flexibility allowed for in the application
of a human right the Human Rights Committee will take into account the
fact that a public emergency exists. This flexibility is sometimes called
the margin of appreciation. However, that flexibility has limits and the
ICCPR is drafted so that after a particular point a State is expected
to utilise the derogation procedure extant in Article 4.
26. The balance between
human rights and security concerns has been much litigated as part of
UK and Irish government attempts to combat IRA terrorism. Cases such as
Lawless v Ireland [4] , Brogan v UK [5]
, Ireland v UK [6] and Brannigan v McBride
v UK [7] have tested the human rights implications
of anti-terrorist laws since 1961. Although those cases were before the
European Court of Human Rights there is effectively little or no difference
between the approach that court takes to human rights and that of the
Human Rights Committee.
27. A number of safeguards
have been put forward by the Human Rights Committee (and the European
Court of Human Rights) to minimise the impact of incursions on human rights
by public security issues, amongst other things. Those safeguards include:
- The restrictions
must be prescribed by law;
- They must be
necessary in a democratic society;
- They must accord
with the principle of proportionality (between the right to be protected
and the general interest);
- The restriction
should not limit the human right more than is necessary to achieve the
aim;
- The means chosen
should be appropriate to achieve the aim.
28. The United Nations
High Commissioner for Human Rights on 27 February 2002 issued a statement
of criteria for protecting human rights while States implement measures
against terrorism. The statement was issued in light of UN Security
Resolution 1373 (28 September 2001) which calls on States to bring
to justice those involved in terrorist acts and to establish such acts
as serious criminal offences. The criteria set out in the statement by
the UN High Commissioner replicate many of the safeguards for the protection
of human rights set out above, and require that any restrictions for public
security purposes shall be:
- Prescribed by
law;
- Necessary for
public security or public order;
- Not impair the
essence of the right;
- Are necessary
in a democratic society;
- Conform to the
principle of proportionality;
- Appropriate to
achieve their aim;
- The least intrusive
means to achieve the aim of the measures;
- Respect the principle
of non-discrimination; and
- Not be arbitrarily
applied.
29. It is with these
principles in mind that HREOC provides the following comments on the ASIO
Bill.
Detention for Questioning
as Arbitrary Detention
30. Article 9 of
the ICCPR provides clear protection for the right to liberty. It is as
follows:
"1. Everyone
has the right to liberty and security of person. No one shall be subjected
to arbitrary arrest or detention. No one shall be deprived of his liberty
except on such grounds and in accordance with such procedure as are
established by law.
2. Anyone who
is arrested shall be informed, at the time of arrest, of the reasons
for his arrest and shall be promptly informed of any charges against
him.
3. Anyone arrested
or detained on a criminal charge shall be brought promptly before a
judge or other officer authorized by law to exercise judicial power
and shall be entitled to trial within a reasonable time or to release.
It shall not be the general rule that persons awaiting trial shall be
detained in custody, but release may be subject to guarantees to appear
for trial, at any other stage of the judicial proceedings, and, should
occasion arise, for execution of the judgment.
4. Anyone who
is deprived of his liberty by arrest or detention shall be entitled
to take proceedings before a court, in order that that court may decide
without delay on the lawfulness of his detention and order his release
if the detention is not lawful.
5. Anyone who
has been the victim of unlawful arrest or detention shall have an enforceable
right to compensation."
31. Article 9(1)
prohibits arbitrary arrest or detention and applies to all forms of detention
whether they be criminal civil, immigration, health or vagrancy related
[8]. The term arbitrary has been interpreted as requiring
more than mere legality.
32. Arbitrary arrest
was considered in Van Alphen v Netherlands (305/88) where the Human
Rights Committee held that the term should not be restricted to legality
but includes "inappropriateness, injustice and lack of predictability".[9]
Where, for example, a person has been held on remand then not only must
the detention be legal but the detention must be reasonable in all the
circumstances. [10] A distinguished commentator on the
ICCPR has commented that arbitrariness includes injustice, unpredictability,
unreasonableness, capriciousness and lack or proportionality. [11]
33. HREOC notes first
and foremost that the warrant provisions sought to be implemented by the
ASIO Bill are not intended to apply to persons suspected of committing
a terrorist offence or having committed such an offence. The provisions
are aimed solely at those who have information that will "substantially
assist the collection of intelligence" and which is "important
in relation to a terrorism offence" (s 34C(3)(c)).
34. In Australian
law there is no equivalent provision in relation to criminal law even
of the most serious kind. There are many examples of persons being able
to be summonsed to appear before a commission of inquiry and required
to answer questions.[12] Any powers of arrest are exercisable
generally only on a failure to appear on such a summons.
35. The issuing of
warrants for the arrest of persons solely for the provision of information
is in HREOC's view contrary to the prohibition on arbitrary arrest under
Article 9(1) of the ICCPR. There are a number of reasons for this. First,
the provisions appear to be based on an assumption that there were, are
or are likely to be terrorist groups operating in Australia. No publicly
available evidence of this has been available except in the broadest sense.
Where similar anti-terrorist measures have been permitted to infringe
human rights with respect to the IRA this has been on the basis that there
has been a "far reaching and acute danger" presented by a "massive
wave of violence and intimidation". [13] The UK
anti-terrorist powers were concerned with continuing campaigns of terror.
HREOC is concerned that in the absence of actual terrorist acts in Australia
special care should be taken before significant inroads are made into
human rights. Secondly, it is not clear that a lesser way in which to
undertake the questioning - for example by relying on a summons under
s34D(2)(a) - is not sufficient for the purpose of gathering information.
36. Thirdly, the
information sought from persons subject to a warrant may be obtained after
the persons suspected of having committed a terrorist offence have been
arrested, avoiding arrest of a person solely to gain information from
that person. In the absence of similar powers for serious criminal offences,
HREOC does not agree that arrest is warranted in order to gain information.
37. HREOC's position
is bolstered by the width of the proposed definition of "terrorism
offence" in the Criminal Code. Many objections have been made
that the term includes protests made by political and industrial organisations
especially where there may have been destruction of property. The warrants
regime would allow for the arrest and detention of persons who had information
with regard to such offences. Two likely groups of persons in Australia
exposed to such warrants would be lawyers and journalists. For example,
a "terrorism offence" could include the recent destruction of
fencing at Woomera by protesters. Any journalist who spoke to a person
involved in such an offence or any lawyer approached for advice could
potentially be the subject of a warrant under the ASIO Bill.
38. A number of other
elements of the warrants regime may fall foul of this prohibition and
are set out below.
Right to Silence
39. Article 14(3)
of the ICCPR is in the following terms:
"(3) In
the determination of any criminal charge against him, everyone shall
be entitled to the following minimum guarantees, in full equality;
...
(g) Not to
be compelled to testify against himself or to confess guilt."
40. Section 34G(9)
states that any information provided by a person subject to a warrant
under compulsion may be used in the prosecution of a terrorism offence
or an offence under s38G (such as failure to provide relevant information).
This is a complete abrogation of the right to silence with respect to
those offences.
41. It is well accepted
by human rights authorities that one of the principal reasons for the
right to silence is to prevent abuse by authorities in compelling detained
persons to answer questions. Where there is a right to compel a witness
to answer questions there are obvious dangers of such abuse. General Comment
13 of the Human Rights Committee with respect to Article 14(3)(g) is in
the following terms:
"In order
to compel the accused to confess or to testify against himself, frequently
methods which violate [the provisions of Article 7 [14]
and 10(1)] are used. The law should require that evidence provided by
means of such methods or any other form of compulsion is wholly unacceptable."
42. The ASIO Bill
requires that questioning only occur before a prescribed authority. However,
the remainder of the detention is not in the presence of the prescribed
authority.
43. HREOC is concerned
that there is an opportunity for a breach of Article 10 to occur notwithstanding
the supposed protection against violations of Articles 7 and 10(1) contained
in s34J. Such a fear is exacerbated by the person being held incommunicado.
The warrants regime does not mandate access to a lawyer or to next of
kin. The person the subject of the warrant is dependent on the prescribed
authority exercising his or her discretion to allow such access prior
to the issue of the warrant.
44. Further, the
supposed protection in s34J is not the subject of criminal penalty. Enforcement
of any such protection would be only available by way of injunction achieved
in a court of law. Any such enforcement would require communication with
a lawyer, such a communication not being allowed unless specified in the
warrant. It is acknowledged that a complaint could be made of a breach
of s34J to the Inspector-General of Intelligence and Security or the Commonwealth
Ombudsman.
Incommunicado Detention
45. HREOC is particularly
concerned at persons being held incommunicado under the warrants regime
in the ASIO Bill. There are three groups of persons which should be given
access to persons subject to warrant: family, a lawyer and a doctor. This
accords with the Human Rights Committee's General Comment on Article 7.
46. The provisions
of the ASIO Bill are drafted so that the primary position in relation
to persons who have been taken into custody or detained is that they are,
"... not
permitted to contact, and may be prevented from contacting, anyone at
any time while in custody or detention." (s34F(8))
47. There is no presumption
that contact should be allowed with any of the three groups of persons
mentioned. Indeed, the reverse is the case. The prescribed authority must
act to include such persons as a category. There is no indication as to
when such a power should be exercised or on what basis.
48. HREOC is particularly
concerned that a person subject to a warrant as proposed in the ASIO Bill
may effectively "disappear" as a result of execution of a warrant.
As there is no limit to the number of such warrants and the effective
extension of the initial 48 hour period such a period of disappearance
may be considerable. The effect of such a disappearance on the next of
kin is likely to be considerable and it is this effect which exacerbates
the lack of proportionality with respect to the power of incommunicado
detention. Accordingly, the incommunicado provisions constitute arbitrary
arrest contrary to Article 9(1).
49. Denial of access
to legal advice raises concern about a breach of Article 9(4). That paragraph
effectively provides for habeas corpus a right guaranteed in Australian
common law. That right is not explicitly removed by the ASIO Bill but
is effectively curtailed through the incommunicado provisions set out
at s 34F(8). If the person subject to the warrant wishes to challenge
the power of arrest and detention there is no mechanism by which such
an application could be made if the person does not have access to his
or her lawyer or next of kin.
50. A person who
is mistakenly identified as someone with relevant information could be
held for 48 hours without the possibility of challenging the arrest and
detention. At present the ASIO Bill leaves the person's release to the
prescribed authority who has issued the warrant: s34F(1)(f) or the expiry
of the warrant. There is no automatic independent review by a court of
the detention.
51. HREOC is of the
opinion that where a person is held incommunicado that such detention
would be a breach of Article 9(4): see Berry v Jamaica (330/88).
Length of Detention
52. As mentioned
above there is no limit on the number of warrants that may be issued with
respect to a person subject to the warrants regime. Each warrant lasts
for a maximum of 48 hours but there is no bar to a further warrant being
issued while the current warrant is in operation. HREOC has two concerns:
the length of any detention before review by an independent judicial body;
and the length of any detention incommunicado.
53. A number of cases
have successfully challenged detentions where there have been significant
delays in bringing the person before a judicial officer. In Jijon v
Ecuador (277/88) the Human Rights Committee held that a delay of 5
days amounted to a breach of Article 9(3). Brogan v UK [16]
is a similar case fought before the European Court of Human Rights where
a delay of 4 days and 6 hours was held to be a breach of the Article 9
equivalent of the European Convention on Human Rights (Article
5). Importantly, in Brogan v UK the arrest and detention was of
an IRA suspect under anti-terrorism laws. Such is the importance of the
right to be brought promptly before a judicial officer that the court
was unwilling to agree that terrorism offences necessitated a longer period.
54. Although both
those cases involved criminal charges there is no reason to believe that
the same principle applies to non-criminal detention pursuant to Article
9(1). The open-ended nature of detention under such an ASIO Bill warrant
causes HREOC some considerable concern. Consideration should be given
to the provisions in s23C of the Crimes Act 1914 (Cth) which allow
for four hours of detention for the purpose of questioning before a person
has to be brought before a judicial officer. There are safeguards to prevent
inappropriate extensions.
55. Detention incommunicado
has been the subject of communications under Article 7 of the ICCPR [18].
However, the shortest breach recorded for a violation of Article 7 has
been 8 months [19]. Allied to such cases is the lesser
standard provided in Article 10(1). In Arzuaga Gilboa v Uruguay
(147/83) holding a person in incommunicado detention for 15 days was held
to be a violation of Article 10(1). Detention for lesser periods has not
been tested to date. [20]
Application of the Amendments
to Children
56. The final area
of impact, and perhaps the most serious, that HREOC wishes to raise with
the Committee is the impact of the ASIO Bill on children. It is not without
some significant surprise that HREOC notes the ASIO Bill makes virtually
no allowance or exemption for children.
57. There is no restraint
on the following provisions with respect to children:
- Arrest,
- Detention;
- Period of detention;
- Access to next
of kin, lawyers or doctors; and
- Provision of
information by compulsion.
58. It is now well
established that the Convention on the Rights of the Child ("CROC")
is the pre-eminent human rights instrument guaranteeing and protecting
the rights of children. Australia has acceded to the Convention and in
1993 the Commonwealth Attorney-General moved under s47 of the HREOC Act
to have it declared an international instrument relating to human rights
and freedoms.
59. It should be
noted that the human rights set out in the ICCPR apply equally to adults
and children. However, the Human Rights Committee in its General Comment
No 20 recognised that children, in particular, are to be protected from
torture and cruel, inhuman and degrading punishment or treatment. [21]
60. Article 37 of
CROC has particular resonance for the Committee's consideration of the
ASIO Bill:
"States
Parties shall ensure that:
(a) No child
shall be subjected to torture or other cruel, inhuman or degrading treatment
or punishment. Neither capital punishment nor life imprisonment without
possibility of release shall be imposed for offences committed by persons
below eighteen years of age;
(b) No child
shall be deprived of his or her liberty unlawfully or arbitrarily. The
arrest, detention or imprisonment of a child shall be in conformity
with the law and shall be used only as a measure of last resort and
for the shortest appropriate period of time;
(c) Every child
deprived of liberty shall be treated with humanity and respect for the
inherent dignity of the human person, and in a manner which takes into
account the needs of persons of his or her age. In particular, every
child deprived of liberty shall be separated from adults unless it is
considered in the child's best interest not to do so and shall have
the right to maintain contact with his or her family through correspondence
and visits, save in exceptional circumstances;
(d) Every child
deprived of his or her liberty shall have the right to prompt access
to legal and other appropriate assistance, as well as the right to challenge
the legality of the deprivation of his or her liberty before a court
or other competent, independent and impartial authority, and to a prompt
decision on any such action."
61. Article 37 replicates
many of the rights and freedoms which are set out in the ICCPR. However
there are some important additional rights which recognise the particular
vulnerability of children.
62. Article 37(b):
Arrest and detention shall be used as a measure of last resort and for
the shortest available time. There are no specific safeguards with
respect to children and the operation of warrants of arrest and detention
in the ASIO Bill. A child of any age could be subject to a warrant of
arrest and detention where, for example, they had information in relation
to a terrorism offence allegedly committed by his or her parent. There
is no requirement that the Director-General inform the Minister that the
warrant is with respect to a child. There are no limits on the number
of warrants and hence the time spent in detention by a child the subject
of those warrants.
63. Article 37(c):
Every child deprived of liberty shall be treated with humanity and respect
for the inherent dignity of the human person, and in a manner which takes
into account the needs of persons of his or her age. The only allowances
made for children in the ASIO Bill are in the case of strip searches.
A parent or guardian is required to be present while a child of the age
of 10-18 years is strip searched. Strip searches for those under 10 years
are prohibited. It is noted with concern that such a power is available
even though the child is not suspected of having committed a terrorism
(or any other) offence. HREOC has drawn attention to its concerns that
detention for the purpose of questioning might breach Article 9(1) of
the ICCPR on the basis that such detention is "arbitrary". However,
when the weighing exercise is conducted with respect to children then
Article 37 of CROC appears to tip the balance towards the protection of
children. That is, even though the task is to weigh national security
against a human right, the rights of children are to be given added emphasis.
64. Article 37(c):
Every child ... shall have the right to maintain contact with his or her
family through correspondence and visits, save in exceptional circumstances.
There are no guarantees included in the ASIO Bill that such contact would
occur with a child in detention. Indeed, as mentioned above, the ASIO
Bill is drafted so that such contact is only to be allowed as an exception.
Such contact could only occur if the warrant specified family (or legal
or medical assistance) as an allowable category under the warrant or the
prescribed authority directed such contact. The warrant regime in the
ASIO Bill fails to safeguard a child's right to contact with a parent
under Article 37(c). Needless to say there is no provision for a parent
to stay with a child while in detention.
65. Although not
the subject of a specific right in CROC it is also of deep concern that
a child may be questioned alone and not in the company of a parent or
guardian. This is a most basic part of the Australian criminal justice
system as it applies to children.
Conclusion
66. HREOC is deeply
concerned that there are a number of provisions of the ASIO Bill which
breach human rights contained in the ICCPR notwithstanding that
they are for the purposes of national security. The balance between implementing
measures for the prevention of terrorism and the protection of human rights
has been the subject of much thought and jurisprudence in the Western
world, particularly in Europe. That experience shows that when anti-terrorist
measures are proposed that may infringe human rights then exquisite care
should be taken in framing and implementing those measures.
67. It is apparent
from the analysis of the ASIO Bill set out above that exquisite care has
not been taken with respect to the drafting of the ASIO Bill. In fact
the powers in the ASIO Bill are considerably wider than one would consider
were necessary and appropriate for the gathering of intelligence with
respect to a terrorist attack that may occur in Australia.
68. HREOC considers
that the ASIO Bill, were it to be passed in its current form, would allow
for breaches of Articles 9(1), 9(4), 10 and 14(3) of the ICCPR.
69. HREOC notes with
further deep concern that the ASIO Bill, while including children in its
powers, provides no appropriate safeguards for children. Following Australia's
accession to CROC and a long history of providing appropriate measures
in the criminal justice system it is to be deplored that safeguards for
children have all but been ignored.
70. HREOC considers
that the ASIO Bill, were it to be passed in its current form, would allow
for breaches of Articles 37(b), 37(c), 37(d) and 40(2)(b)(iv) of CROC.
71. HREOC considers
that the ASIO Bill needs to be substantially re-drafted so that, at the
very least, it complies with the ICCPR and CROC. The potential breaches
outlined in the submissions above are simply unacceptable and disproportionate
to the end which the ASIO Bill aims to achieve.
72. HREOC considers
that, if the ASIO Bill is passed in its current form, provision must be
made in the Bill for an independent review of the operation of the legislation
within two years of the commencement of the legislation. A sunset clause
ought also be included in the ASIO Bill so that the legislation will expire
2 years after its commencement without a further Act of Parliament. This
would encourage systematic review of the necessity for, and of the scope
of, the legislation.
Dr Sev Ozdowski
OAM
Human Rights Commissioner
For and on behalf of the Human Rights and Equal Opportunity Commission
Sydney, 23 May 2002
11(1)(g)
2. Schedule 2 to the HREOC Act.
3. CROC is the subject of a declaration under s 47 of
the HREOC Act that it is an international instrument relating to human
rights and fundamental freedoms for the purposes of that Act.
4. Publication of the European Court of Human Rights,
Series A 3 (1961)
8. Human Rights Committee General Comment No 8 par 1
11. Nowak, UN Covenant on Civil and Political Rights
- CCPR Commentary, 1993, p 172.
12. See, for example, ss35 and 37 of the Independent
Commission Against Corruption Act 1988 (NSW)
13. Ireland v UK Series A 25 (1978) para 212.
14. The prohibition of torture and cruel, inhuman or
degrading treatment.
16. 29 November 1988, Series A Vol 145-B
18. See also the protection provided in the Convention
Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.
20. Joseph et al The ICCPR: Cases Commentary and Materials
2000 OUP p190
Last
updated 26 November 2002.