Inquiry into the Independent Reviewer of Terrorism Laws Bill 2008 [No.2]
Legal
Inquiry into the Independent Reviewer of Terrorism Laws Bill 2008 [No.2]
Australian Human Rights Commission
Submission to the Senate Standing Committee on Legal and Constitutional
Affairs
12 September 2008
Human Rights and
Equal Opportunity
Commission
ABN 47 996 232 602
Level 8 Piccadilly Tower
133 Castlereagh Street
Sydney NSW 2001
GPO Box 5218
Sydney NSW 2001
General enquiries 1300 369 711
Complaints infoline 1300 656 419
TTY 1800 620 241
www.humanrights.gov.au
Table
of Contents
Introduction
- The Australian Human Rights Commission (‘the Commission’) makes
this submission to the Senate Standing Committee on Legal and Constitutional
Affairs in its Inquiry into the Independent Reviewer of Terrorism Laws Bill
2008 [No.2] (‘the Bill’).
Summary
-
The Commission supports the enactment of the Bill and the introduction of an
Independent Reviewer of Terrorism Laws. -
The Bill should, however, be amended to require the Independent Reviewer to
consider the human rights impacts of laws relating to terrorist acts and to
strengthen the Independent Reviewers information gathering
powers.
Recommendations
-
Recommendation 1
The Commission recommends that an
Independent Reviewer of Terrorism Laws be appointed in order to provide an
independent and comprehensive review mechanism for Australia’s
counter-terrorism law regime. -
Recommendation 2
The Commission recommends that an
Independent Reviewer should have a statutory obligation to consider the human
rights impacts of laws relating to terrorist acts. -
Recommendation 3
The
Committee should consider strengthening the information gathering powers of the
Independent Reviewer by:
-
Giving the Independent Reviewer the power to examine persons on oath or
affirmation; and -
Introducing penalties for failing to produce information or documents
required by the Independent Reviewer.
Australia
needs an independent reviewer of terrorism laws
-
The Commission has consistently called for the establishment of an
Independent Reviewer.[1] -
Regular, independent review of counter-terrorism legislation is vital
because of:-
The potential of some counter-terrorism laws to disproportionately infringe
fundamental rights; and -
The lack of adequate judicial review mechanisms in relation to various
aspects of the terrorism regime; and
-
The limited ability - particularly in the absence of an Australian Charter
of Rights - for a person subject to counter-terrorism laws to test the
compatibility of those laws with fundamental human rights.
-
-
Current mechanisms for the review of counter-terrorism laws are ad hoc and
inadequate. While aspects of counter-terrorism laws have been subject to
independent review, other parts have not. For example, under the National
Security Information (Criminal and Civil Proceeding) Act 2004 (Cth) (NSIA)
evidence in terrorism trials can be admitted in a closed hearing from which the
defendant may be excluded, at least for part of the evidence. Despite the
potentially serious implications of the provisions of the NSIA for the right to
a fair trial, there is no mechanism to review the operation of this legislation. -
While the Council of Australian Governments (‘COAG’) will review
the operation of the Anti-Terrorism Act 2005 (Cth) in 2010, there is a
need for a more regular and comprehensive mechanism of review which is
independent from Government.[2] -
In April 2006, the report of the Security Legislation Review Committee
(‘SLRC’) recommended that the Government establish a
legislative-based timetable for continuing review of the security legislation,
by an independent body, such as the SLRC, to take place within the next three
years.[3] -
The SLRC report noted that in the United Kingdom an independent reviewer has
the mandate to review the implementation of terrorism laws and report annually
to Parliament.[4] -
In December 2006, the Parliamentary Joint Committee on Intelligence and
Security (‘PJCIS’) unanimously recommended the appointment of an
Independent Reviewer of terrorism law in Australia. The PJCIS
said:The new terrorism law regime carries heavy penalties and
introduces significant changes to the traditional criminal justice model. While
it is the role of the courts to interpret and apply the existing law it is
Parliament that is responsible for the policy. To date, post enactment review
has been sporadic and fragmented with a focus on specific pieces of legislation
rather than the terrorism law regime as a whole. This has limited the
opportunity for comprehensive evaluation and highlights the need for an
integrated approach to ensure ongoing monitoring and refinement of the law,
where necessary.[5] -
The PJCIS also found that ‘one of the damaging consequences of the
terrorist bombing attacks in the US, the UK, Europe and Indonesia has been a
rise in prejudicial feelings towards Arab and Muslim
Australia’.[6] It also
expressed concern about ‘reports of increased alienation attributed to new
anti-terrorist measures, which are seen as targeting Muslims and contributing to
a climate of suspicion’.[7] An
Independent Reviewer could help restore public confidence in counter-terrorism
laws and provide guidance to Parliament on how to ensure that counter-terrorism
laws do not adversely impact on human rights. -
The Commission therefore unanimously recommended that an Independent
Reviewer of Terrorism Laws be appointed in order to provide an independent and
comprehensive review mechanism for Australia’s counter-terrorism law
regime. [Recommendation 1]
Proposed
amendments to the Bill
The
Independent Reviewer should be specifically required to consider the human
rights impacts of laws relating to terrorist acts
-
Cl 8 of the Bill gives the Independent Reviewer the following
functions:...at the request of the responsible Minister; or of
the Parliamentary Joint Committee on Intelligence and Security; or of the
Independent Reviewer's own motion, to review the operation, effectiveness and
implications of laws relating to terrorist acts. The Independent Reviewer shall
be free to determine priorities as he or sees fit. -
The Bill does not specifically require the Independent Reviewer to consider
whether laws comply with Australia’s human rights obligations under
international human rights conventions which Australia has
ratified[8] or the human rights
impacts of the operation of counter-terrorism laws. -
The Commission supports giving an Independent Reviewer a broad mandate. The
Independent Reviewer should not be restricted to reviewing one aspect of the
Australia’s counter-terrorism laws but should have the ability to consider
how Australia’s counter-terrorism laws are working as a whole. This is
because sometimes different counter-terrorism powers interact to impact on
people’s rights. For example, a person who is the subject of an
application for a control order may not be informed of particular evidence in
the case against him because it is information that is considered likely to
prejudice national security within the meaning of the National Security
Information (Criminal and Civil Proceedings) Act 2004. -
While the Commission supports giving the Independent Reviewer a broad
mandate, the Commission submits that it is appropriate to require the
Independent Reviewer to consider the human rights impacts of laws relating to
terrorist acts. Such a requirement will ensure the Independent Reviewer provides
guidance to Government on ensuring counter-terrorism laws comply with human
rights. -
A requirement that the Independent Reviewer consider the human rights
impacts of laws relating to terrorist acts is particularly important in the
absence of a statutory federal charter of human rights. Currently, there is no
requirement on parliament to expressly consider the human rights compatibility
of counter-terrorism laws. -
The Commission is concerned that terrorism laws in Australia have often been
enacted in haste and without adequate assessment of whether they comply with
Australia’s international human rights obligations. Significantly, the
SLRC report expressed concern that government agencies sometimes ’...
passed over the invasive effect of particular legislation on human rights, and
said little about particular steps that might have been taken by their agencies
to alleviate such effects’.[9] -
The Commission therefore recommends that the Independent Reviewer should
specifically be required to examine:-
The operation, effectiveness and implications of laws relating to
terrorist acts; and -
The human rights impacts of laws relating to terrorist acts. [Recommendation 2]
-
Failure
to comply with the Independent Reviewer’s information gathering powers
should attract penalties
-
The Commission considers the Independent Reviewer’s information
gathering powers under cl 10 of the Bill could be strengthened. Under cl 10(1)
and cl 10(5) of the Bill the Independent Reviewer may, by written notice,
require a person to produce documents or attend before the Independent Reviewer
and answer questions.[10] However,
no penalties attach to the failure to comply with a written notice from the
Independent Reviewer. -
The Committee should consider strengthening the information gathering powers
of the Independent Reviewer by:
[1] See Human Rights and Equal
Opportunity Commission, Submission to the Security Legislation Review Committee,
January 2006; Human Rights and Equal Opportunity Commission, Submission to the
Clarke Inquiry on Dr Haneef, May 2008. Both submissions are available at http://www.humanrights.gov.au/legal/ .
[2] It is noted that the SLRC
states that if an independent reviewer had been appointed the review to be
commissioned by COAG in late 2010 could be expanded in its scope to include all
of Part 5.3 of the Criminal Code. SLRC, Report of the Security Legislation
Review Committee (2006), 201 [18.3].
[3] Security Legislation Review
Committee (‘SLRC’), Report of the Security Legislation Review
Committee (2006), 201 [18.2].
[4] Section 126 of the Terrorism
Act 2000 (UK); ss 14(3) of the Prevention of Terrorism Act 2005. Lord
Carlile of Berriew, QC, is the Independent reviewer appointed by the Secretary
of State under the Prevention of Terrorism Act 2005 (UK) annually to
review the operation of that Act and prepare a report to Parliament pursuant to
the Terrorism Act 2000. Lord Carlile’s reports are available at http://www.homeoffice.gov.uk/security/terrorism-and-the-law/checks-on-laws2/;
see also Security Legislation Review Committee (‘SLRC’), Report
of the Security Legislation Review Committee (2006), [18.5].
[5] Parliamentary Joint Committee
on Intelligence and Security, Review of Security and Counter-terrorism
Legislation, December 2006, 21.
[6] Parliamentary Joint Committee
on Intelligence and Security, Review of Security and Counter Terrorism
Legislation, December 2006, Canberra, [3.3] citing the Human Rights and Equal
Opportunity Commission, Ismaع–Listen: National consultations on
eliminating prejudice against Arab and Muslim Australians (‘the IsmaعReport’), 2004.
[7] Parliamentary Joint Committee
on Intelligence and Security, Review of Security and Counter Terrorism
Legislation, December 2006, Canberra, [3.3], [3.5].
[8] See, in particular, The
International Covenant on Civil and Political Rights, opened for signature
16 December 1966, 999 UNTS 171 (entered into force 23 March 1976); Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment opened for signature 12 October 1984, 1465 UNTS 85 (entered into
force 16 June 1987).
[9] SLRC, Report of the Security
Legislation Review Committee (2006) [5.2].
[10] It is noted cl 10 (6) of the
Bill provides: ‘A person is not liable to any penalty under the
provisions of any other enactment by reason of his or her giving the information
to the Independent Reviewer or producing the document to the Independent
Reviewer’.
[11] See, for example, the
information gathering powers in ss 21 and 22 of the Human Rights and Equal
Opportunity Commission Act 1986 (Cth)
[12] See, for example, the
penalty provisions for failing to give information or documents under s 23 the Human Rights and Equal Opportunity Commission Act 1986 (Cth).