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COAG Review of Counter-Terrorism Legislation

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COAG Review of Counter-Terrorism Legislation

Australian Human Rights Commission Submission to the COAG Review Committee

September 2012

Table of contents

1 Introduction

  1. The Australian Human Rights Commission (Commission) makes this submission to
    the Council of Australian Governments Review Committee (Review Committee) in its
    review of counter-terrorism legislation.
  2. The Commission notes that the review covers provisions
    in 19 different Acts, across all nine Australian jurisdictions, and that the
    Review Committee will examine these laws and make recommendations as to whether
    they:

    • (1) are necessary and proportionate
    • (2) are effective against terrorism by providing law enforcement,
      intelligence and security agencies with adequate tools to prevent, detect and
      respond to acts of terrorism
    • (3) are being exercised in a way that is evidence-based, intelligence-led
      and proportionate, and
    • (4) contain appropriate safeguards against abuse.
  3. The Commission’s functions as Australia’s national human rights
    institution are set out in s 11 of the Australian Human Rights Commission Act
    1986     (Cth), and include examining legislation in order to ascertain whether
    laws are inconsistent with, or contrary to human rights.
  4. Consequently, the Commission's concern (and area of expertise) relates to
    whether the counter-terrorism laws the subject of this Review breach human
    rights standards or allow for the breach of human rights standards. Accordingly,
    the Commission limits its submission to consideration of criteria (1) and (4)
    mentioned above (that it, whether the laws are necessary and proportionate, and
    contain appropriate safeguards against abuse), as these criteria align with
    consideration of the human rights issues raised by the laws under review.The
    Commission interprets the term ‘abuse’ as including unjustifiable
    infringement of human rights.
  5. The Commission will also limit its submission to consideration of the
    legislative provisions relating to control orders and preventative detention
    orders, as in the Commission’s view these provisions raise the most
    significant concerns in terms of their impact on the rights and freedoms of
    persons within the territory and jurisdiction of Australia.

2 Summary

  1. In summary, the following are the key concerns which the Commission wishes
    to emphasise to the Review Committee, in light of its review criteria numbers
    (1) and (4).
  2. In terms of the control order provisions contained in Division 104 of the Criminal Code Act 1995 (Cth), the Commission considers that the
    provisions contain inadequate safeguards against abuse. This lack of safeguards
    may result in arbitrary (that is, unnecessary and/or disproportionate)
    interference with a number of rights of those subjected to such orders. Such
    rights include the rights to liberty and privacy, and the rights to freedom of
    movement, expression, and association (articles 9, 17, 12, 19 and 22 of the International Covenant on Civil and Political Rights (ICCPR)
    respectively).[1]
  3. The Commission also considers the absence of a review mechanism in Division
    104 is critical. Such a mechanism could provide an effective remedy for any
    violation of rights pursuant to a control order, as required by articles 9(4)
    and 2(3) of the ICCPR.
  4. In relation to preventative detention orders (PDOs), the Commission is of
    the view that the legislation providing for the making of PDOs in several (if
    not all) Australian jurisdictions provides inadequate safeguards against abuse.
    In particular, there are inadequate safeguards to protect the right to freedom
    from arbitrary detention set out in article 9(1) of the ICCPR, due to:

    • the low threshold for the making of a PDO
    • the nature of the authority responsible for issuing a PDO
    • the maximum length of detention available under the PDO regime in each
      jurisdiction.
  5. The Commission also has concerns about the lack of court involvement in (and
    consequently control of) the detention regime in a number of jurisdictions. Most
    notable in this regard is the Commonwealth PDO regime. The Commission is also
    concerned that the timing of court review of PDOs in some jurisdictions is too
    late (or uncertain).
  6. Finally, the Commission notes that in almost all jurisdictions restrictions
    are placed both on any contact a detainee has with a lawyer, and the information
    made available to a detainee about the factual basis for his or her detention.
    These restrictions may prevent a detainee from being able to successfully
    challenge the legality of his or her detention, contrary to article 9(4) of the
    ICCPR.

3 Recommendations

  1. The Commission recommends that:
  2. Recommendation 1: A court issuing a control order should be required to
    be satisfied that a control order (with the conditions sought) is also the least
    restrictive means of achieving the purpose of protecting the public from a
    terrorist act, in all the circumstances.
  3. Recommendation 2: The Review Committee investigate options for more
    timely and effective judicial review of control orders, through consultation
    with experts in the area. This investigation should include consideration of
    judicial review under the Administrative Decisions (Judicial Review) Act
    1977     (Cth) of decisions of the Attorney-General to consent to the making of
    an application for a control order.
  4. Recommendation 3: The issuing court for a control order should be
    required to satisfy itself that any ex parte application is warranted in
    the particular circumstances.
  5. Recommendation 4: Division 104 of the Criminal Code Act 1995 (Cth)
    should be amended to set out the minimum content to be included in the summary
    of the grounds to be provided to the subject. It should specifically require
    that the person be given sufficient material to alert him or her to the factual
    basis upon which the order was made, to enable him or her to identify whether
    there are grounds for revocation or variation.
  6. Recommendation 5: The threshold in each jurisdiction for the making of
    PDOs, both on the preventative basis and the evidence basis, should include a
    requirement that the issuing authority be satisfied that detaining the person is
    the least restrictive way of preventing a terrorist act (for a preventative PDO)
    or preserving evidence of such an attack (for an evidence PDO).
  7. Recommendation 6: The Review Committee assess whether a maximum of 14
    days detention is necessary and proportionate in light of information about how
    PDOs have been utilised in practice. The Commission also recommends that all PDO
    legislation should contain clear and unambiguous statements as to the maximum
    length of detention possible under a PDO, including absolute limits on multiple
    orders.
  8. Recommendation 7: Schedule 1 (dac) of the Administrative Decisions
    (Judicial Review) Act 1977     (Cth) and s 105.51(4) of the Criminal Code Act
    1995     (Cth) should be repealed to allow persons detained under a Commonwealth
    PDO to apply for judicial review under the former Act.
  9. Recommendation 8: The relevant legislation in the Northern Territory,
    South Australia and Western Australia should be amended to require that as soon
    as     practicable after or, in any event, within 24 hours of
    the person being brought into custody or detained under a PDO, the person the
    subject of a PDO must be brought before the Supreme Court for review of the
    order.
  10. Recommendation 9: The restrictions which apply to contact with lawyers in
    all jurisdictions (except Queensland) should be amended to avoid imposing
    unnecessary constraints upon the provision of legal advice. A lawyer should be
    allowed to provide professional services to a person detained under a PDO in
    connection with any pressing, lawful, personal or business affairs.
  11. Recommendation 10: The relevant PDO legislation in all jurisdictions
    should be amended to ensure that a detainee’s contact with his or her
    lawyer may be visually monitored, but otherwise must remain private.
  12. Recommendation 11: At the very least, the PDO legislation in each
    jurisdiction should set out the minimum requirements for the content of the
    'summary' of the grounds on which any initial, final or extension of a PDO is
    made. The summary should be sufficient to alert the subject of the order to the
    factual basis upon which the order was made. Summaries should also be required
    in respect of any decision to refuse a revocation application.

4 Broad concerns about
the necessity and proportionality of counter-terrorism measures

  1. The Commission notes that one of the over-arching questions for the Review
    Committee is whether the counter-terrorism measures contained in the laws under
    review are ‘necessary and proportionate’.
  2. In the absence of publicly available material regarding the current threat
    to Australia of a terrorist attack, the Commission is not in a position to
    conclude definitively whether the existence of such measures, broadly speaking,
    is a necessary and proportionate response to the threat to national security
    currently posed by terrorists.
  3. The Commission provides the following general advice as to the relevance of
    international human rights standards to the assessment of necessity and
    proportionality.
  4. The human rights standards against which the counter-terrorism laws should
    be reviewed are primarily contained in the ICCPR. Australia has acceded to and
    is bound by the ICCPR, and it has been incorporated into Australian domestic
    law.[2] Australia is also subject to
    the Covenant’s enforcement mechanism, the Human Rights
    Committee.[3]
  5. The need to attempt to achieve an appropriate balance between protecting
    individual rights and addressing legitimate national security concerns is
    inherent in human rights instruments such as the ICCPR. This was uppermost in
    the minds of the drafters and has been revisited often by the Human Rights
    Committee when hearing communications alleging breaches of the
    Covenant.
  6. The drafters of the ICCPR clearly envisaged that there would be occasions
    when the human rights set out in the Covenant would be justifiably infringed by
    States ‘in times of public emergency which threatens the life of the
    nation’.[4] It therefore set
    forth a procedure in article 4 of the ICCPR to be followed when a State is
    proposing to derogate from certain rights. The Commission notes that the
    Australian Government has not sought to use the procedure in article 4.
  7. 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. 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 in article 4, or the State will be in breach of the
    ICCPR.
  8. The United Nations High Commissioner for Human Rights in her report dated 27
    February 2002 included a statement entitled ‘General Guidance: Criteria
    for the Balancing of Human Rights Protection and the Combating of
    Terrorism’.[5] In this statement the High Commissioner advised that counter-terrorism laws
    authorising restrictions on human rights should use precise criteria and may not
    confer unfettered discretion on those charged with their
    execution.[6]
  9. The High Commissioner also advised that for limitations of rights to be
    lawful, they must:

    • be prescribed by law
    • be necessary for public safety or public order, the protection of public
      health or morals, or for the protection of the rights and freedoms of others,
      and serve a legitimate purpose
    • not impair the essence of the right
    • be interpreted strictly in favour of the rights at issue
    • be necessary in a democratic society
    • conform to the principle of proportionality
    • be appropriate to achieve their protective function, and be the least
      intrusive instrument amongst those which might achieve that protective
      function
    • be compatible with the objects and purposes of human rights treaties
    • respect the principle of non-discrimination
    • not be arbitrarily
      applied.[7]
  10. It is with these principles in mind that the Commission provides the
    following comments on some of the counter-terrorism laws the subject of the
    Review.

5 Control orders under
Division 104 of the Criminal Code Act 1995 (Cth)

5.1 Legislative
framework

  1. Division 104 of Part 5.3 of the Criminal Code Act 1995 (Cth) provides
    for the making of control orders. A control order is an order issued by a court
    (either the Federal Court, Family Court or Federal Magistrates Court), at the
    request of a member of the Australian Federal Police (AFP), to allow
    obligations, prohibitions and restrictions to be imposed on a person, for the
    purpose of protecting the public from a terrorist
    act.[8]

  2. These prohibitions or restrictions may prevent the person from:
    • being at specified areas or places
    • leaving Australia
    • communicating or associating with specific individuals
    • accessing or using specified types of telecommunications, including the
      internet
    • possessing or using specified articles or substances
    • carrying out specified activities (including in respect to their work or
      occupation).[9]
  1. Control order terms may also require the person to:
    • remain at specific premises at particular times of the day
    • wear a tracking device
    • report to specified persons at specified times and places
    • allow him or herself to be photographed and have fingerprint impressions
      taken
    • participate in specified counselling or education (only if they agree to do
      so).[10]
  2. A control order may only be sought with the prior permission of the
    Attorney-General,[11] unless the AFP
    officer makes an application for an ‘urgent interim control
    order’.[12] For an urgent
    interim order, the Attorney-General’s consent must be obtained no later
    than four hours after the request for the urgent order is
    made.[13] However, no conditions
    are placed upon the giving of the Attorney-General’s consent to any type
    of control order.
  3. If the Attorney-General consents, the AFP officer may seek an ‘interim
    control order’ from the Federal Court, Family Court, or Federal
    Magistrates Court. The court may make such an order if it is satisfied, on the
    balance of probabilities, 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; and (in either case)
    • each of the obligations, prohibitions, and restrictions to be imposed on the
      person by the order is reasonably necessary, and reasonably appropriate and
      adapted, for the purpose of protecting the public from a terrorist
      act.[14]
  4. Interim control orders are issued ex parte (that is, in the absence
    of the person against whom the order is
    sought).[15] However, the interim
    control order must specify a day, at the latest 72 hours after it was made, on
    which the person who is the subject of the order can attend court to challenge
    the making of the order.[16] If the
    AFP wishes to confirm the control order, it must go back to court on that date
    and seek a confirmed order.
  5. The person who is the subject of the interim control order must be given 48
    hours’ notice of the confirmation hearing, and be provided with certain
    information about why the interim order was made (discussed
    below).[17] The court will make a
    decision after hearing evidence from both parties. The court may declare an
    interim control order void, revoke it, or confirm it (including with
    variations). A confirmed control order can last up to 12 months, after which it
    can be
    renewed.[18]

5.2 Inadequate
safeguards against arbitrary interference with a number of rights

  1. The Commission has previously considered the control orders available under
    the Criminal Code Act 1995 (Cth), and has raised a number of concerns
    about aspects of these provisions in terms of their compatibility with
    Australia’s human rights
    obligations.[19]
  2. It is evident from the types of prohibitions and restrictions which can be
    placed upon a person that these orders potentially infringe upon a number of
    human rights, including:

    • the right to liberty (article 9(1) of the ICCPR)
    • the right to freedom of movement (article 12 of the ICCPR)
    • the right to privacy (article 17 of the ICCPR)
    • the right to freedom of expression (article 19 of the ICCPR)
    • the right to freedom of association (article 22 of the
      ICCPR).

(a) Right to
liberty

  1. Article 9(1) of the ICCPR provides that:

    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. Control orders, although they do not explicitly provide for the
    ‘detention’ of a person, may raise issues under article 9(1). The
    effect of a control order may be such as to qualify as a deprivation of liberty
    for the purposes of the ICCPR if the order includes a requirement that the
    person remain at specified premises between specified times each day, or on
    specified days.
  3. The Human Rights Committee has observed that ‘detention’ is not
    to be narrowly understood, and that article 9 applies to all forms of detention
    or deprivations of liberty, whether they are criminal, civil, immigration,
    health, or vagrancy related.[20]
  4. The distinction between measures which constitute a ‘deprivation
    of’ liberty, as opposed to those which only impose a ‘restriction
    upon’ liberty, is one of degree or intensity, and not one of nature or
    substance. Nor does it depend in any way upon the labelling of something as
    ‘detention’. Rather, it will depend upon criteria such as the type,
    duration, effects, and manner of implementation of the measure in
    question.[21]
  5. Although the restrictions available under the control order provisions may
    amount to a form of detention, the wording of article 9(1) makes it clear that
    the right to liberty is not an absolute right; it can be subject to limitations.
    The article does allow a State to detain a person for the purposes of public
    security.[22] However, such
    detention must not be ‘arbitrary’. The Human Rights Committee has
    clearly stated that detention can be arbitrary even though it is provided for by
    law; arbitrariness in this context includes concepts of
    ‘inappropriateness, injustice and lack of
    predictability’.[23]
  6. The Human Rights Committee has also stressed that to be compatible with
    article 9(1) detention must meet the requirement of
    ‘proportionality’.[24] In Australia the Full Federal Court in the matter of Minister for Immigration
    and Multicultural and Indigenous Affairs v Al Masri     similarly concluded that
    ‘the text of Art 9... requires that arbitrariness is not to be equated
    with “against the law” but is to be interpreted more broadly, and so
    as to include a right not to be detained in circumstances which, in the
    individual case, are “unproportional” or
    unjust’.[25]
  7. Therefore, in order for the detention of a person not to be considered
    arbitrary, his or her detention must not only be lawful, but also reasonable and
    necessary in all the
    circumstances.[26] A lack of
    proportionality between a decision to detain a person and the aims sought to be
    achieved by the State can result in such detention violating article
    9(1).[27]

(b) Rights to privacy
and freedom of movement, expression and association

  1. Like the right to liberty in article 9(1), the other rights which
    potentially may be infringed by the making of a control order, depending upon
    the particular restrictions and prohibitions which are attached to such an
    order, are not absolute. Generally, each of these rights may legitimately be
    subject to restrictions, if those restrictions meet certain criteria.
  2. Article 17(1) of the ICCPR prohibits ‘arbitrary or unlawful’
    interference with a person’s privacy, family, or correspondence. The Human
    Rights Committee has held that the concept of arbitrariness in Article 17(1) is
    ‘intended to guarantee that even interference provided for by law should
    be...reasonable in the particular
    circumstances’.[28]
  3. Article 12 expressly provides that the right to liberty of movement may be
    subject to restrictions, as long as those restrictions are provided by law, are
    necessary for certain purposes (including to protect national security), and are
    consistent with the other rights recognised in the ICCPR. The right to freedom
    of expression in article 19 may also be subject to restrictions which are lawful
    and necessary to protect national security.
  4. Finally, article 22 of the ICCPR provides that the right to freedom of
    association may be subjected to such restrictions as are prescribed by law and
    are ‘necessary in a democratic society in the interests of national
    security or public safety’.

(c) Conclusion as to the
absence of adequate safeguards against arbitrary interference with
rights

  1. From the above discussion it can be seen that in order for a State placing
    restrictions on the rights mentioned above to avoid breaching the ICCPR, those
    restrictions must not be arbitrary (in terms of being disproportionate), must be
    necessary, and must be reasonable in all the circumstances.
  2. It is the case under Division 104 that before an issuing court can make an
    interim control order it must be satisfied that every one 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.[29] However, the Commission considers that given the extraordinary nature of a
    control order, and in light of the criteria proposed by the United Nations High
    Commissioner for Human Rights, a stricter test of proportionality would be
    appropriate. A stricter test of proportionality would provide a stronger
    safeguard against abuse, in terms of unnecessary (and therefore unjustified)
    interference with the human rights mentioned above.
  3. Recommendation 1: The Commission recommends that a court issuing a
    control order should be required to be satisfied that a control order (with the
    conditions sought) is also the least restrictive means of achieving the purpose
    of protecting the public from a terrorist act, in all the
    circumstances.

5.3 Lack of safeguard
of effective review and (in the event of abuse) remedy

  1. The Commission has concerns about the restricted ability of persons the
    subject of control orders to oppose the legality of their treatment, to have the
    legality reviewed and, in the event of abuse, to secure an effective
    remedy.
  2. As discussed above, the restrictions placed on a person’s freedom of
    movement pursuant to a control order may amount to a form of detention for the
    purposes of article 9 of the ICCPR. If this is the case, article 9(4) will
    apply, which entitles anyone who is deprived of his or her liberty detention
    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.

  3. The procedural right conferred by article 9(4) is a specific manifestation
    of the overarching right to an ‘effective remedy’ for violations of
    any of the rights in the ICCPR, which is recognised by article
    2(3).[30] Therefore articles 9(4)
    and 2(3) translate into requirements that States provide adequate safeguards
    against unlawful and/or arbitrary interference with the rights in the ICCPR, in
    the form of judicial review.
  4. As noted above, both interim control orders and urgent interim control
    orders may be made ex parte. The person the subject of those orders has
    no right to appear before the court prior to them being made. Nor does Division
    104 of the Criminal Code Act 1995 (Cth) impose any requirement upon the
    AFP or the court to consider whether the circumstances of the case are such that
    the person may be given such an opportunity without endangering national
    security.
  5. Division 104 does provide for a hearing involving both parties after the
    interim control order has been served, at which the person the subject of the
    control order, and his or her legal representative, may make submissions and
    adduce evidence.[31] After
    considering the material before it, the court is empowered to revoke the order,
    or declare it void. However, this hearing can be up to 72 hours after the
    interim control order was made, meaning that severe restrictions, for example of
    a person’s freedom of movement, may have been in place for days before the
    person can oppose the legality of these restrictions.
  6. After a control order has been confirmed, the subject of a control order can
    bring an application for revocation or variation of the order, provided he or
    she has given written notice of the application and the grounds upon which
    revocation is sought to the Commissioner of the
    AFP.[32]
  7. However, there is a difficulty with the review of control orders under
    Division 104, in terms of access to information. Under that Division, a person
    who is subjected to an interim control order must be given: a copy of that order
    (including a summary of the grounds on which it was
    made);[33] the documents given to
    the Attorney-General in order to obtain his or her consent to the application
    for the interim control order, and ‘any other details required to enable
    the person to understand and respond to the substance of the facts, matters and
    circumstances which will form the basis of the confirmation of the
    order’.[34]
  8. However, these requirements do not oblige the AFP to give the person
    information if the disclosure of that information is considered likely to
    prejudice national security (within the meaning of the National Security
    Information (Criminal and Civil Proceedings) Act 2004     (Cth)) or jeopardise
    police operations.[35] The term
    ‘national security’ is given a very broad definition in that
    Act,[36] and includes interests such
    as ‘ensuring that intelligence and law enforcement agencies are not
    discouraged from giving information to a nation’s government and
    government agencies’.[37] Therefore, in practice, the information given to a person about why a control
    order was made against them may only consist of information of a general nature,
    devoid of specific factual references.
  9. A number of consequences follow from this. Firstly, a person the subject of
    a control order may find it difficult or impossible to comply with the
    requirement to give written notice to the AFP Commissioner of the grounds upon
    which the revocation or any variation of the order is sought. The person may not
    have the information in their possession which would enable them to identify the
    grounds on which the order was made, which in turn would enable them to argue
    that those grounds are not (or no longer) present.
  10. Secondly, the court conducting a confirmation, revocation or variation
    hearing would presumably be able to rely upon the usual range of compulsory
    powers to require the AFP to produce relevant documentary material. However,
    this will inevitably result in delays, during which time a person may be
    effectively subjected to a form of detention. The current approach in Division
    104 therefore increases the likelihood that a person may be subject to arbitrary
    detention or violation of one of the other human rights referred to above for a
    longer period.
  11. Even if a court does compel production of relevant material, the
    Attorney-General could invoke the National Security Information (Criminal and
    Civil Proceedings) Act 2004     (Cth). As noted above, the use of that procedure
    may result in information being withheld (through orders for redaction or
    non-disclosure). It will also delay any determination as to whether the control
    order should be revoked or varied. Again, this raises the possibility of delay
    in correcting mistaken exercises of power and thus ending the violations of the
    human rights of those subjected to control orders.
  12. The Commission notes that Division 104 of the Criminal Code Act 1995 (Cth) does not purport to oust the original jurisdiction of the High Court or
    Federal Court to grant judicial review. However, such a process of review is
    unlikely to be a sufficient remedy, in terms of ending the violation (that is,
    the detention or other infringement of a right), given the time it would
    potentially take to approach a court for relevant relief.
  13. The Commission therefore has concerns about the lack of an effective review
    mechanism for control orders which could provide an adequate safeguard against
    abuse of the control order powers, and a remedy for any potential violations of
    the wide range of rights which could be impacted by such an order.
  14. Recommendation 2: The Commission recommends that the Review Committee
    investigate options for more timely and effective judicial review of control
    orders, through consultation with experts in the area. This investigation should
    include consideration of judicial review under the Administrative Decisions
    (Judicial Review) Act 1977     (Cth) of decisions of the Attorney-General to
    consent to the making of an application for a control order.
  15. In any event, the Commission considers that the ex parte nature of
    applications for interim control orders, and the restrictions upon the
    information provided to persons the subject of control orders regarding the
    basis for the order, need to be addressed.
  16. Recommendation 3: The Commission recommends that the issuing court for a
    control order should be required to satisfy itself that any ex parte application is warranted in the particular circumstances.
  17. Recommendation 4: The Commission recommends that Division 104 of the Criminal Code Act 1995 (Cth) should be amended to set out the minimum
    content to be included in the summary of the grounds to be provided to the
    subject. It should specifically require that the person be given sufficient
    material to alert him or her to the factual basis upon which the order was made,
    to enable him or her to identify whether there are grounds for revocation or
    variation.

6 Preventative detention
orders

6.1 Inadequate
safeguards against arbitrary detention

(a) Introduction

  1. In all nine Australian jurisdictions there is legislation in place which
    provides for the making of preventative detention orders
    (PDOs).[38]These orders enable a
    person to be taken into custody and detained for up to 14 days without that
    person being charged, convicted, or even suspected of having committed a
    criminal offence.
  2. As with control orders, a key concern of the Commission with regard to the
    PDOs in all jurisdictions is that they may allow for arbitrary detention, in
    violation of article 9(1) of the ICCPR. As discussed above, in order for
    detention not to be arbitrary it must be proportionate to the aims sought to be
    achieved by such detention.
  3. In order to assess the risk of persons being detained under a PDO when such
    detention is not a proportional response in all the circumstances, it is
    necessary to examine the main safeguards against arbitrary use of PDOs which are
    contained in the relevant legislation. The safeguards examined are:

    • the threshold set by the legislation for the making of a PDO
    • the nature of the body or person responsible for determining whether this
      threshold for making an (initial) PDO has been met
    • the limits on the maximum amount of time a person can be detained under each
      PDO
      regime.



(b) Threshold
for making a PDO

  1. In each of the jurisdictions there are two
    distinct bases for making a PDO. The first is in order to prevent a terrorist
    act that is imminent and in any event is expected to happen within 14 days (the
    ‘preventative basis’). The wording of the criteria in each
    jurisdiction for a PDO to be issued on this basis varies slightly, but generally
    the authority issuing the PDO must be satisfied that there are reasonable
    grounds to suspect (or in Western Australia (WA), must be satisfied on
    reasonable grounds) that the subject:

    • will engage in/intends and has the capacity to carry out a terrorist act,
      or
    • possesses/has under the person’s control (solely or jointly with
      another person) a thing that is connected with the preparation for, or the
      engagement of a person in, a terrorist act, or
    • has done (or under the Commonwealth regime, alternatively will do), an act
      in preparation for, or planning, a terrorist
      act.[39]
  2. In all jurisdictions except the Australian Capital Territory (ACT), to make
    a PDO on the preventative basis the issuing authority must also be satisfied (in
    the Northern Territory (NT), South Australia (SA), Tasmania (Tas), Victoria
    (Vic), and WA, on reasonable grounds) that making the order would substantially
    assist in preventing a terrorist act occurring, and that detaining the subject
    for the period for which the person is to be detained under the order is
    reasonably necessary for this
    purpose.[40]
  3. In the ACT there is a stricter test for the making of a PDO on the
    preventative basis, as in addition to being satisfied of the criteria listed in
    paragraph 77 above, the issuing
    authority must be satisfied on reasonable grounds that:
      • it is reasonably necessary to detain the person to prevent a terrorist act
      • detaining the person under the order is the least restrictive way of
        preventing the terrorist act, and
      • detaining the person for the period for which the person is to be detained
        under the order is reasonably necessary to prevent the terrorist
        act.[41]
  4. The second basis for the making of a PDO is in order to preserve evidence
    of, or relating to, a terrorist act that has already occurred (the
    ‘evidence basis’). In all jurisdictions except the ACT, to make a
    PDO on the evidence basis the issuing authority must be satisfied (in the NT,
    SA, Tas, Vic and WA, on reasonable grounds) that:

    • a terrorist act has occurred within the last 28 days
    • it is necessary to detain the subject to preserve evidence of, or relating
      to, the terrorist act, and
    • detaining the subject for the period for which the person is to be detained
      under the order is reasonably necessary in order to achieve the above
      purpose.[42]

81. Again,
in the ACT a slightly stricter test is applied, as before an issuing authority
can make a PDO on the evidence basis it must be satisfied on reasonable grounds
that:

    • a terrorist act has happened within the last 28 days
    • it is reasonably necessary to detain the person to preserve evidence in the
      ACT or elsewhere of, or relating to, the terrorist act, and
    • detaining the person under the order is the only effective way of preserving
      the evidence, and
    • detaining the person for the period for which the person is to be detained
      under the order is reasonably necessary to preserve the
      evidence.[43]

82. In
each jurisdiction, therefore, there is some scrutiny of proportionality before a
PDO is issued; at a minimum the issuing authority must be satisfied that
detention for the period requested is ‘reasonably necessary’ to
achieve the purpose for which it is sought.

83. However, the Commission considers that a more stringent proportionality test
would appropriately reflect the fact that PDOs, like control orders, are
exceptional orders and should only be made in exceptional circumstances. The
higher the threshold for making an order is set, the less likely that a PDO will
be made, and a person deprived of their liberty, unnecessarily.

84. Recommendation 5: The Commission recommends that the threshold in each
jurisdiction for the making of PDOs, both on the preventative basis and the
evidence basis, should include a requirement that the issuing authority be
satisfied that detaining the person is the least restrictive way of preventing a
terrorist act (for a preventative PDO) or preserving evidence of such an attack
(for an evidence PDO).

(c) Nature of the
person/body responsible for making an (initial) PDO

  1. In each Australian jurisdiction there are two ‘stages’ of PDOs.
    These stages can take different forms. For example, under the Commonwealth
    regime and in Queensland (Qld), the legislation provides for two separate types
    of PDOs, In the first stage, interim (or ‘initial’) orders can be
    issued by a senior police officer, but these orders only permit detention for up
    to 24 hours.[44] If the police wish
    to retain the person in detention for longer than a day, an application must be
    made to a different issuing authority for a final ( or ‘continued’)
    order (the second stage).
  2. In other jurisdictions, such as in SA and WA, in the first stage an
    application for a PDO is made to a particular issuing authority: in SA a judge
    or, in urgent circumstances, a senior police officer, and in WA a current or
    former judge.[45] If a PDO is
    issued, it must then be reviewed by the Supreme Court in the respective States,
    and after this review the Court can confirm, vary, or revoke the
    PDO.[46] The confirmation of the PDO
    by the Court constitutes the beginning of the second stage of PDOs in these
    jurisdictions.
  3. In Victoria and New South Wales (NSW), the system is different again. In
    those jurisdictions, the Supreme Courts in those states have a discretion as to
    whether or not to issue an interim PDO, pending the hearing and final
    determination of an application for a
    PDO.[47] Therefore, in those
    jurisdictions, there may be one or two stages of PDOs, depending on the
    circumstances.
  4. Analysis of the provisions in the various Acts which relate to the second
    stage of PDOs will be dealt with below, in the section concerning judicial
    control of detention. For present purposes, the focus of the discussion is the
    first stage, when the order is first made allowing a person to be taken into
    custody and detained.
  5. The nature of the person or body responsible for first making a PDO is
    important, as this process provides the check against abuse of (initial) PDO
    powers by police officers. In order to provide an effective check, the person or
    body responsible should be completely independent from the organisation seeking
    the order, and impartial arbiters of whether the threshold for making a PDO has
    been met.
  6. From this viewpoint, the systems in jurisdictions such as the Commonwealth,
    Qld, SA and Tas are problematic. Under the legislation in force in those
    jurisdictions, an initial PDO is (or can be) made by a senior member of the
    police force, usually on an ex parte basis.[48] Therefore, the person
    responsible for deciding whether the (low) threshold for detention has been met
    is a senior member of the same organisation as the officer seeking the order,
    and the former makes this decision solely based on the evidence he or she
    receives from the officer seeking the order. The person the subject of the
    application (or his or her lawyer) has no opportunity to argue that the PDO
    should not be made, and to provide the issuing authority with evidence which
    might conflict with the information held by police.
  7. The Commission considers that such a situation
    does not provide an appropriate safeguard against arbitrary detention of
    individuals under PDOs. The Commission suggests that the Review Committee
    investigate whether it would be possible to amend the relevant legislation to
    require that, in every jurisdiction, any PDO, including any interim PDOs, only
    be issued by an appropriate court in the relevant state or territory (or, in the
    case of the Commonwealth regime, a federal court), as is currently the case in
    the ACT, NSW, and
    Victoria.[49]

(d) Maximum length of
detention under the PDO regime

  1. In the assessment of whether the detention of a person under a PDO is
    arbitrary and contrary to article 9(1) of the ICCPR, the length of time that
    person is detained is a relevant factor. The Human Rights Committee has stated
    that even if a decision to detain someone can be considered a proportional
    response in light of a particular aim, ‘in order to avoid a
    characterization of arbitrariness, detention should not continue beyond the
    period for which the State party can provide appropriate
    justification’.[50]
  2. The Commonwealth PDO legislation only permits detention for a total of 48
    hours, including any extensions.[51] In all eight other Australian jurisdictions, detention under a (final) PDO, made
    on either the preventative basis or the evidence basis, can continue (or be
    extended) for up to 14
    days.[52]
  3. This long period of possible detention is of considerable concern to the
    Commission. When combined with the fact that, as discussed above, the
    legislation in all the jurisdictions sets a very low threshold for detention (in
    that the person need not even be suspected of having committed a criminal
    offence), a period of 14 days’ detention on its face raises questions
    about proportionality.
  4. However, whether 14 days is in fact the maximum amount of time a person can
    be detained under the PDO powers available in each jurisdiction depends on the
    restrictions placed on the making of multiple (consecutive) PDOs in relation to
    the same person. Most jurisdictions place restrictions on the making of multiple
    PDOs in relation to the same person, on the same basis (that is, the
    preventative basis or evidence
    basis).[53]
  5. There is an issue, however, with the wording of some of the provisions which
    purport to restrict the making of multiple PDOs on the same basis, against the
    same person. For example, in NSW and the NT, the relevant legislation provides
    that multiple detention orders made against a person ‘in relation to the
    same terrorist act’ cannot result in that person being detained for more
    than 14 days.[54] However, the
    legislation also provides that ‘a terrorist act ceases to be the same
    terrorist act if there is a change in the date on which the terrorist act is
    expected to occur’.[55]
  6. The adoption of this definition of ‘the same terrorist act’
    leaves open the possibility that a person could be detained under multiple
    consecutive (14 day) PDOs, potentially indefinitely, if police speculation about
    the future date of an expected terrorist act changes.
  7. The Commission considers that it is crucial that the legislation in each
    jurisdiction place a clear and effective limit on the total length of time that
    a person can be detained under the PDO powers, including if multiple orders are
    made. If the end date of detention is open-ended, the risk that a person’s
    detention will continue beyond the point where it can be justified increases
    substantially. A clear upper limit is an important safeguard against arbitrary
    detention.
  8. Recommendation 6: The Commission recommends that the Review Committee
    assess whether a maximum of 14 days detention is necessary and proportionate in
    light of information about how PDOs have been utilised in practice. The
    Commission also recommends that all PDO legislation should contain clear and
    unambiguous statements as to the maximum length of detention possible under a
    PDO, including absolute limits on multiple orders.

6.2 Lack of safeguard
of effective court control of detention

(a) Introduction

  1. As with control orders, the Commission has concerns about the restricted
    ability of persons the subject of PDOs to have the legality of their treatment
    effectively (and impartially) reviewed and, if warranted, remedied, as they are
    entitled to under articles 9(4) and 2(3) of the ICCPR.
  2. The Human Rights Committee has explicitly stated that article 9 of the ICCPR
    requires that adequate safeguards be put in place if any system of
    ‘preventative’ detention is used by a State party in relation to
    persons not charged with any criminal offence. In General Comment 8 the
    Committee commented that article 9 requires that:

    [I]f so-called
    preventative detention is used, for reasons of public security, it ... must not
    be arbitrary, and must be based on grounds and procedures established by law
    (para. 1), information of the reasons must be given (para. 2) and court control
    of the detention must be available (para.
    4).[56]

(b) Provision for court
control or review of detention

  1. The levels (and institutions) of review available for persons who are
    detained pursuant to a PDO vary widely across the different jurisdictions. For
    example. in the ACT and NSW there are three opportunities for court control of
    the detention built into the PDO regime, as in both jurisdictions the Supreme
    Court:

    • issues any interim PDO
    • holds a (mandatory) hearing (in which the detainee has a right to be
      involved) and makes a (final) PDO
    • can hear applications from the person the subject of a PDO for revocation or
      setting aside of that order.[57]
  2. A similar regime of multiple court reviews of PDOs is in place in Victoria,
    with the exception that a person the subject of a PDO can only apply to the
    Victorian Supreme Court for revocation (or variation) of that order with leave
    of the Court.[58]
  3. At the other end of the spectrum, under the Commonwealth regime, there is no
    court control or review of PDOs built into the PDO regime. Initial PDOs are
    issued by a senior member of the
    AFP.[59] Continued PDOs are made by
    an ‘issuing authority’ (who is a Judge, Federal Magistrate, AAT
    member or retired judge, acting in a personal
    capacity).[60] Both applications
    will be decided ex parte. There is no provision allowing a person the
    subject of a Commonwealth PDO to apply to any body for revocation of that
    order.
  4. The Commonwealth PDO legislation does expressly provide that a person may
    bring legal proceedings in a court in order to obtain a remedy in relation to a
    PDO or the treatment of a person in connection with that person’s
    detention under a PDO.[61] However,
    the Commonwealth Act restricts access to avenues of court review which would
    usually be available to a person who wants to challenge a decision made by a
    government official.
  5. Applications for judicial review under the Administrative Decisions
    (Judicial Review) Act 1977     (Cth) of decisions relating to Commonwealth PDOs
    are excluded,[62] as is the
    jurisdiction of state and territory
    courts.[63]
  6. In addition, while, under the Commonwealth regime, a person detained under a
    PDO can apply to the Administrative Appeals Tribunal for a review of the merits
    of the decision to make that PDO, such an application cannot be made while the
    PDO is in force.[64] This
    essentially confines the AAT to issuing a remedy after the fact; the AAT cannot
    release a person who is wrongly detained under a PDO.
  7. The remaining option for court review of a Commonwealth PDO is to make an
    application for judicial review to the Federal Court under s 39B of the Judiciary Act 1903 (Cth) or to the High Court under s 75(v) of the Constitution. However, these processes do not allow for an investigation
    of the facts or of the reasonableness and proportionality of the detention; the
    grounds upon which the decision to make a PDO can be challenged in this type of
    review are very limited. In addition, such applications are unlikely to be made,
    heard, and determined quickly enough to end any unlawful detention.
  8. The Commission considers that the lack of effective court control of the
    detention of persons under the Commonwealth PDO regime violates the right to
    court review required by article 9(4) of the ICCPR. It also breaches the right
    to an effective remedy in article 2(3) of the ICCPR, as in the context of a
    regime of preventative detention, a remedy which is 'effective' must be one
    which enables a person who is wrongfully detained or being ill-treated to obtain
    redress before the wrongful detention or ill-treatment comes to an end.
  9. There are a number of ways in which the Commonwealth PDO regime could (and
    should) be amended to insert safeguards of court review. As mentioned above in
    paragraph 91, the Commission
    suggests that the Review Committee consider whether the functions of issuing
    interim and continued PDOs could be transferred to a federal court, and/or
    whether the Commonwealth legislation could be amended to provide that a person
    the subject of PDO, or his or her lawyer, can make an (urgent) application to a
    federal court for revocation of that order.
  10. The Commission notes that the Review Committee has been asked to review
    schedule 1 (dac) of the Administrative Decisions (Judicial Review) Act
    1977     (Cth), which currently excludes all decisions made in relation to
    Commonwealth PDOs from the review mechanism created under that Act. The
    Commission recommends that, in addition to considering the changes to the
    Commonwealth PDO regime mentioned directly above, the exclusion of these
    decisions from this avenue of review should be removed.
  11. Recommendation 7: The Commission recommends that Schedule 1 (dac) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 105.51(4)
    of the Criminal Code Act 1995 (Cth) should be repealed to allow persons
    detained under a Commonwealth PDO to apply for judicial review under the former
    Act.
  12. A further issue, which arises in those jurisdictions in which there is some
    form of court review of the detention built into the PDO regime, is the timing
    of this review. Article 9(4) of the ICCPR entitles a person to have a court
    decide ‘without delay’ whether his or her detention is lawful, and
    to order release of the person if the detention is not lawful.
  13. The Human Rights Committee has not stated what period will constitute a
    delay for the purposes of article 9(4). However, in Hammel v Madagascar the Committee found that there had been a violation of article 9(4)
    because the complainant had been detained and unable to bring proceedings before
    a court to determine the lawfulness of his arrest for a period of three
    days.[65]
  14. The Commission is concerned that in the NT and WA the relevant Acts do not
    clearly identify how long a person can be detained under a PDO (made by an
    issuing authority who is not a court) before the Supreme Court can review his or
    her detention. In both jurisdictions, the legislation only provides that the
    person the subject of a PDO must be brought before the Supreme Court ‘as
    soon as practicable’ after that person is first taken into custody or
    detained under the PDO.[66] The NT
    legislation (unlike the WA legislation) does allow the person detained under a
    PDO to apply to the Supreme Court for revocation of the order, but the detainee
    can only make such an application after the PDO has been confirmed by the
    Supreme Court.[67]
  15. It appears that the same problem attends the PDO regime used in SA, when the
    PDO is issued by a judge (acting in a personal
    capacity).[68]
  16. The Commission considers that the requirement of ‘as soon as
    practicable’ is not a sufficient safeguard against arbitrary detention, as
    it leaves the police officers detaining a person under a PDO with a discretion
    to determine at what point the person is brought before a court and,
    accordingly, at what point the person can first challenge the legality of his or
    her detention. The Commission’s view is that a requirement that a detained
    person be brought before a court ‘as soon as practicable’ is not
    sufficient to secure that person’s entitlement to judicial review of the
    legality of their detention ‘without delay’.
  17. Recommendation 8: The Commission recommends that the relevant legislation
    in the Northern Territory, South Australia and Western Australia should be
    amended to require that as soon as     practicable after or, in any
    event    , within 24 hours of the person being brought into custody or
    detained under a PDO, the person the subject of a PDO must be brought before the
    Supreme Court for review of the order.

(c) Restrictions on
access to and contact with legal advisers

  1. A further issue which the Commission wishes to raise in relation to the
    effectiveness of court (or other) review of a person’s detention under a
    PDO is a detainee’s right to contact a lawyer. Although article 9(4) of
    the ICCPR does not expressly include a right to access a lawyer, the Human
    Rights Committee has recognised that a detainee must have access to legal
    representation if the entitlement to challenge the lawfulness of his or her
    detention in article 9(4) is to have any
    meaning.[69]
  2. In all jurisdictions a person detained pursuant to a PDO has a right to
    contact a lawyer, but in all jurisdictions except Qld, the contact between the
    person and his or her lawyer is restricted to certain subject matters (such as
    mounting a challenge to the legality of the PDO), and must be conducted in such
    a way that it can be monitored.[70] Also, in all jurisdictions, ‘prohibited contact orders’ may be made,
    which may affect the choice of the particular lawyer with whom a detainee is
    permitted contact.[71]
  3. The United Nations Basic Principles on the Role of Lawyers provide (at paragraph 8) that:

    All arrested, detained or imprisoned persons shall be provided with adequate
    opportunities, time and facilities to be visited by and to communicate and
    consult with a lawyer, without delay, interception or censorship and in full
    confidentiality    . Such consultations may be within sight, but not within
    the hearing    , of law enforcement
    officials.[72]

  1. The restrictions placed upon the contact a person detained under a PDO may
    have with a lawyer, including the condition of monitoring, raise the prospect of
    interference with the provision of legitimate legal advice to that person,
    contrary to the requirements of the Basic Principles. Such interference
    is problematic in that it may undermine the provision of full and comprehensive
    legal advice necessary for the detainee to effectively exercise his or her
    rights to challenge the legality of his or her detention and/or seek a remedy
    for any arbitrary detention (or other violation of rights by persons exercising
    PDO powers).
  2. For example, the restrictions on a detainee’s contact with a lawyer
    under the Commonwealth PDO regime would not seem to permit the person to
    instruct his or her lawyer to seek to have a terrorist organisation
    ‘de-listed’ under s 102.1(17) of the Criminal Code Act 1995 (Cth). Given that a person's association with a terrorist organisation may form
    a central part of a decision to issue a PDO for that person, such a constraint
    on lawyer/client communications could be particularly significant.
  3. The Commonwealth restrictions would also appear to prevent a lawyer advising
    a person about possible criminal charges which may be brought against the
    detained person, and to prevent the detainee from instructing a lawyer to attend
    to pressing personal or business matters on the detained person's behalf.
  4. Additionally, the monitoring of any discussions between the detainee and his
    or her lawyer raises issues in terms of the detainee’s right to privacy
    under article 17 of the ICCPR.
  5. The Commission considers that the restrictions placed on the contact between
    a person detained under a PDO and his or her lawyer, in terms of limiting such
    contact only to certain listed subject matters, are too strict, and may obstruct
    the effective exercise of the detainee’s rights under articles 9(4) and
    2(3) of the ICCPR.
  6. The Commission also considers that it is appropriate that monitoring of
    lawyer/detainee contact under PDO regimes should be limited to visual
    monitoring. This would be consistent with the recommendation of the Senate Legal
    and Constitutional References Committee in relation to the provisions in the Australian Security Intelligence Organisation Act 1979 (Cth) concerning
    monitoring of contact between a lawyers and a person detained under Division 3
    of Part III of that Act.[73]
  7. Recommendation 9: The Commission recommends that the restrictions which
    apply to contact with lawyers in all jurisdictions (except Queensland) should be
    amended to avoid imposing unnecessary constraints upon the provision of legal
    advice. A lawyer should be allowed to provide professional services to a person
    detained under a PDO in connection with any pressing, lawful, personal or
    business affairs.
  8. Recommendation 10: The Commission recommends that the relevant PDO
    legislation in all jurisdictions should be amended to ensure that a
    detainee’s contact with his or her lawyer may be visually monitored, but
    otherwise must remain private.

(d) Restrictions on
disclosure of information to the detainee

  1. A final issue of concern to the Commission in relation to the practical
    effectiveness of court or other reviews of PDOs are the restrictions placed on
    the information which is provided to the detainee about the reasons for
    detention.
  2. In all Australian jurisdictions except the
    ACT[74] and
    Qld,[75] after a PDO has been made,
    the only information which is required to be provided to the person as to the
    reason for his or her detention, or the factual basis for the making of the
    order, is a ‘summary of the grounds’ on which the order was made. In
    some jurisdictions this summary is set out by the relevant issuing authority in
    the PDO itself,[76] and in others it
    is a separate document provided to the
    detainee.[77]
  3. The legislation in these jurisdictions does not set out any minimum content
    for these summaries. The material provided to the detainee therefore could be
    very general in nature, and in fact could state no more than the fact that the
    PDO was made on a preventative or evidential basis (using the wording of the
    threshold from the relevant Act).
  4. Further, in these seven jurisdictions, the legislation expressly provides
    that this general summary of the grounds for an order, which is provided to the
    detainee, need not include any information which is ‘likely to prejudice
    national security’.[78] Given
    the expansive way in which this term is usually
    interpreted,[79] and the types of
    intelligence likely to form the basis for a request for a PDO, this proviso may
    exclude a great deal of substance from any summary provided to the
    detainee.
  5. The problem created by the giving of such limited information to a person
    detained under a PDO is that this can make it practically impossible for the
    detainee (or his or her lawyer) to mount an effective challenge to the legality
    of the person’s detention, because they do not know the factual basis on
    which the order was made. Without disclosure of sufficient information about why
    the order was made, the detainee, or his or her legal representative, cannot
    actively participate in any court (or other) review of his or her detention, or
    provide any basis for an application for revocation.
  6. The Human Rights Committee has acknowledged that the giving of sufficient
    information to a detainee about the reasons for his or her detention is a
    necessary precondition to the exercise of that person’s right to challenge
    (and have a court review) the legality of that detention. That is why the
    Committee stated in General Comment 8 that article 9 includes a
    requirement that if preventative detention is used, ‘information of the
    reasons [for the detention] must be
    given’.[80]
  7. The Commission considers that a detainee’s access to information
    regarding the basis for his or her detention in the jurisdictions discussed
    above do not meet the requirement of article 9(4).
  8. Recommendation 11: The Commission recommends that, at the very least, the
    PDO legislation in each jurisdiction should set out the minimum requirements for
    the content of the 'summary' of the grounds on which any initial, final or
    extension of a PDO is made. The summary should be sufficient to alert the
    subject of the order to the factual basis upon which the order was made.
    Summaries should also be required in respect of any decision to refuse a
    revocation application.
  9. The Commission accepts that there will be some classes of security sensitive
    information which will require protection. To the extent possible, the police in
    each jurisdiction should be required to consider whether the information can be
    provided in an altered form (which is the approach adopted under the National
    Security Information (Criminal and Civil Proceedings) Act 2004     (Cth)).
  • [1] Opened for signature 16
    December 1966, 999 United Nations Treaty Series 171; entered into force on 23
    March 1976 (except article 41, which came into force 28 March 1979); ratified by
    Australia on 13 August 1980 (article 41 ratified by Australia on 28 January
    1993).
  • [2] See schedule 2 of the Australian Human Rights Commission Act 1986 (Cth).
  • [3] Australia acceded to the first
    Optional Protocol to the ICCPR, which established the Human Rights
    Committee’s jurisdiction to receive and consider individual communications
    concerning violations of the rights in the Convention, on 25 September 1991.
  • [4] International
    Covenant on Civil and Political Rights    , art 4.
  • [5] See Commission on Human
    Rights, Report of the United Nations High Commissioner for Human Rights and
    Follow-Up to the World Conference on Human Rights     - Human rights: a
    uniting framework    , UN Doc. E/CN.4/2002/18 (2002), Annex. At http://ap.ohchr.org/documents/alldocs.aspx?doc_id=2800 (viewed 25 September 2012).
  • [6] Commission on Human Rights,
    above.
  • [7] Commission on Human Rights,
    above.
  • [8] Criminal Code Act 1995 (Cth) s 104.1.
  • [9] See Criminal Code Act 1995 (Cth) ss 104.5(3) and 104.16(1)(c).
  • [10] Criminal Code Act 1995 (Cth) ss 104.5(3) and 104.16(1)(c).
  • [11] Criminal Code Act 1995 (Cth) s 104.2.
  • [12] Criminal Code Act 1995 (Cth) s 104.6(2)
  • [13] Criminal Code Act 1995 (Cth) s 104.10.
  • [14] Criminal Code Act 1995 (Cth) s104.4(i)(c)
    and(d).
  • [15] See Criminal Code Act 1995 (Cth) s 104.4.
  • [16] Criminal Code Act 1995 (Cth) s 104.5(1)(e) and (1A).
  • [17] Criminal Code Act 1995 (Cth) ss 104.12(1) and 104.12A.
  • [18] Criminal Code Act 1995 (Cth) s 104.16.
  • [19] See Australian Human Rights
    Commission, Submission to the Senate Legal and Constitutional Legislation Committee, Inquiry into the
    Anti-Terrorism Bill (No 2) 2005     (11 November 2005). At http://humanrights.gov.au/legal/submissions/terrorism_sub_12-11-2005.html (viewed 25 September 2012). See also the Background Paper prepared by the
    Commission on human rights concerns raised by Australia’s
    counter-terrorism laws, A Human Rights Guide to
    Australia’s Counter-Terrorism Laws     (2008). At http://humanrights.gov.au/legal/publications/counter_terrorism_laws.html (viewed 25 September 2012).
  • [20] United Nations Human Rights
    Committee, General Comment No 8: Right to liberty and security of persons
    (Art. 9)     (1982), [1].
  • [21] See, in the context of the European Convention on Human Rights, Amuur v France (1992) 22 EHRR
    533, [42].
  • [22] United Nations Human Rights
    Committee, General Comment No 8: Right to liberty and security of persons
    (Art. 9)     (1982) [4].
  • [23] United Nations Human Rights
    Committee, Van Alphen v Netherlands, Communication No. 305/1988, views
    adopted 23 July 1990 [5.8].
  • [24] See e.g. United Nations
    Human Rights Committee, A v Australia, Communication No. 560/1993, views
    adopted 3 April 1997, [9.2]. See also Manfred Nowak, UN Covenant on Civil and
    Political Rights - CCPR Commentary     NP Engel (1993) p 172.
  • [25] (2003) 126 FCR 54 at
    [152].
  • [26] United Nations Human Rights
    Committee, Van Alphen v Netherlands, Communication No. 305/1988, views
    adopted 23 July 1990, [5.8].
  • [27] United Nations Human Rights
    Committee, A v Australia, Communication No. 560/1993, views adopted 3
    April 1997, [9.2].
  • [28] United Nations Human Rights
    Committee, General Comment No 16: The right to respect of privacy, family,
    home and correspondence, and protection of honour and reputation (Art. 17)     (1988) [4].
  • [29] Criminal Code Act
    1995     (Cth) s 104.4(d).
  • [30] See e.g. United Nations
    Human Rights Committee, Massiotti and Baritussio v Uruguay, Communication No 25/1978, views adopted 26 July 1982, [13].
  • [31] Criminal Code Act 1995 (Cth) s 104.14(1).
  • [32] Criminal Code Act 1995 (Cth) s 104.18.
  • [33] Criminal Code Act 1995 (Cth) s 104.5(1)(h).
  • [34] Criminal Code Act 1995 (Cth) ss 104.12 and 104.12A
  • [35] Criminal Code Act 1995 (Cth) s 104.12A(3).
  • [36] See National Security
    Information (Criminal and Civil Proceedings) Act 2004     (Cth) ss 8 to 11.
  • [37] National Security
    Information (Criminal and Civil Proceedings) Act 2004     (Cth) s 11(d).
  • [38] Criminal Code Act 1995 (Cth) div 105; Terrorism (Extraordinary Temporary Powers) Act 2006 (ACT); Terrorism (Police Powers) Act 2002 (NSW) pt 2A; Terrorism
    (Emergency Powers) Act 2003     (NT) pt 2B; Terrorism (Preventative
    Detention) Act 2005     (Qld); Terrorism (Preventative Detention) Act
    2005     (SA); Terrorism (Preventative Detention) Act 2005 (Tas); Terrorism (Community Protection) Act 2003 (Vic) (Part 2A); Terrorism
    (Preventative Detention) Act 2006     (WA).
  • [39] Criminal Code Act 1995 (Cth) s 105.4(4)(a); Terrorism (Extraordinary Temporary Powers) Act 2006 (ACT) s 18(4); Terrorism (Police Powers) Act 2002 (NSW) s 26D(1); Terrorism (Emergency Powers) Act 2003 (NT) s 21G(1)(a); Terrorism
    (Preventative Detention) Act 2005     (Qld) s8(3)(a); Terrorism (Preventative
    Detention) Act 2005     (SA) s 6(3)(a); Terrorism (Preventative Detention)
    Act 2005     (Tas) s 7(1)(a); Terrorism (Community Protection) Act 2003 (Vic) s 13E(1)(a); Terrorism (Preventative Detention) Act 2006 (WA) ss
    9(1)(a) and 13(1)(a).
  • [40] Criminal Code Act 1995 (Cth) s 105.4(4)(b) and (c); Terrorism (Police Powers) Act 2002 (NSW)
    s 26D(1); Terrorism (Emergency Powers) Act 2003 (NT) s 21G(1)(a); Terrorism (Preventative Detention) Act 2005 (Qld) s 8(3)(b) and (c); Terrorism (Preventative Detention) Act 2005 (SA) s 6(3)(b); Terrorism
    (Preventative Detention) Act 2005     (Tas) s 7(1)(a); Terrorism (Community
    Protection) Act 2003     (Vic) s 13E(1)(a); Terrorism (Preventative
    Detention) Act 2006     (WA) ss 9(1)(b) and 13(1)(b).
  • [41] Terrorism (Extraordinary
    Temporary Powers) Act 2006     (ACT) s
    18(4).
  • [42] Criminal
    Code Act 1995     (Cth) s 105.5(6);Terrorism (Police Powers) Act 2002 (NSW) s 26D(2); Terrorism (Emergency Powers) Act 2003 (NT) s
    21G(1)(b); Terrorism (Preventative Detention) Act 2005 (Qld) s8(5); Terrorism (Preventative Detention) Act 2005 (SA) s 6(5); Terrorism
    (Preventative Detention) Act 2005     (TAS) s 7(1)(b); Terrorism (Community
    Protection) Act 2003     (Vic) s 13E(1)(b); Terrorism (Preventative
    Detention) Act 2006     (WA) ss 9(3) and 13(1).
  • [43] Terrorism (Extraordinary
    Temporary Powers) Act 2006     (ACT) s 18(6).
  • [44] Criminal Code Act 1995 (Cth) s 105.8; Terrorism (Preventative Detention) Act 2005 (QLD) ss
    7(1) and 17(5).
  • [45] Terrorism (Preventative
    Detention) Act 2005     (SA) ss 4 and 6; Terrorism (Preventative Detention)
    Act 2006     (WA) ss 7 and 11.
  • [46] Terrorism (Preventative
    Detention) Act 2005     (SA) s17; Terrorism (Preventative Detention) Act
    2006     (WA) s 22.
  • [47] Terrorism (Police
    Powers) Act 2002     (NSW) s 26H; Terrorism (Community Protection) Act
    2003     (Vic) s 13E(4).
  • [48] Criminal Code Act 1995 (Cth) s 105.8; Terrorism (Preventative Detention) Act 2005 (QLD) ss
    7(1), 13 and 17; Terrorism (Preventative Detention) Act 2005 (SA) s 4; Terrorism (Preventative Detention) Act 2005 (Tas) ss 5(3), 6(5) and
    7.
  • [49] Terrorism (Extraordinary
    Temporary Powers) Act 2006     (ACT) s 20; Terrorism (Police Powers)
    Act 2002     (NSW) s 26H; Terrorism (Community Protection) Act 2003 (Vic)
    s 13E(4).
  • [50] United Nations Human Rights
    Committee, C v Australia, Communication No. 900/1999, views adopted 28
    October 2002, [8.2].
  • [51] Criminal Code Act 1995 (Cth) ss 105.12(5) and 105.14(6).
  • [52] Terrorism (Extraordinary
    Temporary Powers) Act 2006     (ACT) s 21(3)(b); Terrorism (Police Powers)
    Act 2002     (NSW) s 26K; Terrorism (Emergency Powers) Act 2003 (NT) s
    21K; Terrorism (Preventative Detention) Act 2005 (Qld) s 12(2); Terrorism (Preventative Detention) Act 2005 (SA) s 10(5)(b); Terrorism
    (Preventative Detention) Act 2005     (Tas) s 9(2); Terrorism (Community
    Protection) Act 2003     (Vic) s 13G(1); Terrorism (Preventative Detention)
    Act 2006     (WA) s 13(3).
  • [53] See Terrorism
    (Extraordinary Temporary Powers) Act 2006     (ACT) s 12; Terrorism
    (Preventative Detention) Act 2005     (Qld) s 12; Terrorism (Preventative
    Detention) Act 2005     (SA) s 8; Terrorism (Preventative Detention) Act
    2006     (WA) s 15(4).
  • [54] Terrorism (Police
    Powers) Act 2002     (NSW) s 26K(2); Terrorism (Emergency Powers) Act
    2003     (NT) s 21K.
  • [55] Terrorism (Police
    Powers) Act 2002     (NSW) s 26K(7)(a); Terrorism (Emergency Powers) Act
    2003     (NT) s 21B(1).
  • [56] United Nations Human Rights
    Committee, General Comment No 8: Right to liberty and security of persons
    (Art. 9)     (1982) [4].
  • [57] Terrorism (Police
    Powers) Act 2002     (NSW) ss 26H, 26I and 26M; Terrorism (Extraordinary
    Temporary Powers) Act 2006     (ACT) ss 18, 20 and 31.
  • [58] Terrorism (Community
    Protection) Act 2003     (Vic) ss 13E and 13N.
  • [59] Criminal Code Act 1995 (Cth) s 105.8.
  • [60] Criminal Code Act 1995 (Cth) ss 105.12 and 105.18(2).
  • [61] Criminal Code Act 1995 (Cth) s 105.51(1).
  • [62] Criminal Code Act 1995 (Cth) s 105.51(4) and Administrative Decisions (Judicial Review) Act
    1977     (Cth) sch 1 (dac).
  • [63] Criminal Code Act 1995 (Cth) s 105.51(2).
  • [64] Criminal Code Act 1995 (Cth) s 105.51(5).
  • [65] United Nations Human Rights
    Committee, Hammel v Madagascar, Communication No. 155/1983, views adopted
    3 April 1987, [18.2] and [20].
  • [66] Terrorism (Emergency
    Powers) Act 2003     (NT) s 21P; Terrorism (Preventative Detention) Act
    2006     (WA) s 22.
  • [67] Terrorism (Emergency
    Powers) Act 2003     (NT), s 21S(1)(a).
  • [68] See Terrorism
    (Preventative Detention) Act 2005     (SA) ss 10(b), 16(2) and 17.
  • [69] United Nations Human Rights
    Committee, Berry v Jamaica, Communication No. 330/1988, views adopted 7
    April 1994, [11.1].
  • [70] Criminal Code Act 1995 (Cth) ss 105.37 and 105.38; Terrorism (Extraordinary Temporary Powers)
    Act 2006     (ACT) ss 52 and 56(2); Terrorism (Police Powers) Act 2002 (NSW) ss 26ZG and 26ZI; Terrorism (Emergency Powers) Act 2003 (NT) ss
    21ZK and 21ZM; Terrorism (Preventative Detention) Act 2005 (Qld) ss
    58-59A; Terrorism (Preventative Detention) Act 2005 (SA) ss 37 and 38; Terrorism (Preventative Detention) Act 2005 (Tas) ss 34 and 35; Terrorism (Community Protection) Act 2003 (Vic) ss 13ZF and 13ZG; Terrorism (Preventative Detention) Act 2006 (WA) ss 43 and 44(2).
  • [71] Criminal Code Act 1995 (Cth) ss 105.15, 105.16 and 105.40; Terrorism (Extraordinary Temporary
    Powers) Act 2006     (ACT) ss 32 and 57; Terrorism (Police Powers) Act 2002 (NSW) ss 26N and 26ZJ; Terrorism (Emergency Powers) Act 2003 (NT) ss
    21Q, 21R and 21ZN; Terrorism (Preventative Detention) Act 2005 (Qld) ss
    32, 33 and 63; Terrorism (Preventative Detention) Act 2005 (SA) ss 13-14
    and 40; Terrorism (Preventative Detention) Act 2005 (Tas) ss14-15 and 37; Terrorism (Community Protection) Act 2003 (Vic) ss 13L, 13M and 13ZI; Terrorism (Preventative Detention) Act 2006 (WA) ss 17, 18 and
    40(3).
  • [72] United Nations, Basic
    Principles on the Role of Lawyers,     adopted by the Eighth United Nations
    Congress on the Prevention of Crime and the Treatment of Offenders, Havana,
    Cuba, 7 September 1990, [8] (emphasis added). At http://www2.ohchr.org/english/law/lawyers.htm (viewed 25 September 2012).
  • [73] Senate Legal and
    Constitutional References Committee, Australian Security Intelligence
    Organisation Legislation Amendment (Terrorism) Bill 2002 and related
    matters    , December 2002, p 142 (recommendation 9). At http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/completed_inquiries/2002-04/asio_2/report/contents.htm (viewed 25 September 2012).
  • [74] In the ACT, a person
    detained under an interim PDO must be given a copy of the application for a
    (final) PDO ‘as soon as possible’ after he or she is detained, or in
    any event before the Supreme Court can make any final PDO: See Terrorism (Extraordinary Temporary Powers) Act 2006 (ACT) ss18(2)(a) and
    21(7)(a). The application must include the ‘facts and other grounds on
    which the officer considers a preventative detention order should be made for
    the person’: s 17(d)).
  • [75] In Queensland, in addition
    to providing a summary of the grounds on which the order was made, the issuing
    authority must give (and the detainee must receive) reasons for the decision to
    make the order: See Terrorism (Preventative Detention) Act 2005 (Qld) s
    51.
  • [76] Criminal Code Act 1995 (Cth) ss 105.8(6)(e),105.12(6)(d)) and 105.32; Terrorism (Police Powers)
    Act 2002     (NSW) ss 26J(1)(e) and 26ZB; Terrorism (Preventative Detention)
    Act 2005     (SA) ss 10(6)(e) and 32; Terrorism (Community Protection) Act
    2003     (Vic) ss 13F(4)(h) and 13ZA.
  • [77] Terrorism (Emergency
    Powers) Act 2003     (NT) s 21ZF; Terrorism (Preventative
    Detention) Act 2005     (Tas) s 29; Terrorism (Preventative Detention) Act
    2006     (WA) s 37.
  • [78] Criminal Code Act 1995 (Cth) ss 105.8(6A) and 105.12(6A); Terrorism (Police Powers) Act 2002 (NSW) s 26J(2); Terrorism (Emergency Powers) Act 2003 (NT) s 21ZF(2); Terrorism (Preventative Detention) Act 2005 (SA) s 10(6A); Terrorism
    (Preventative Detention) Act 2005     (Tas) s 29(2); Terrorism (Community
    Protection) Act 2003     (Vic) s 13F(5); Terrorism (Preventative Detention)
    Act 2006     (WA) s 37(2).
  • [79] See, for example, the broad
    definition given to the term ‘national security’ in sections 8 to 11
    of the National Security Information (Criminal and Civil Proceedings) Act
    2004     (Cth) (particularly the way the concept is expanded by s 11).
  • [80] United Nations Human Rights
    Committee, General Comment No 8: Right to liberty and security of persons
    (Art. 9)     (1982) [4].