Submission to the Law Reform Commission

Legal

SUBMISSION OF THE HUMAN RIGHTS
AND EQUAL OPPORTUNITY COMMISSION TO THE AUSTRALIAN LAW REFORM COMMISSION
IN RESPONSE TO BACKGROUND PAPER 8: PROTECTING CLASSIFIED AND SECURITY
SENSITIVE INFORMATION

Introduction

The Human Rights
and Equal Opportunity Commission (HREOC) is established by the Human
Rights and Equal Opportunity Commission Act 1986. HREOC is Australia's
National Human Rights Institution.
HREOC's functions
include those set out in section 11(1) of the Human Rights and Equal
Opportunity Commission Act 1986 (HREOC Act). Section 11(1)(g) of
the HREOC Act confers upon HREOC the function of promoting an understanding
and acceptance, and the public discussion, of human rights in Australia.
HREOC notes that
the Attorney-General has asked the Australian Law Reform Commission
(ALRC) to inquire into, and report on, measures to protect classified
and security sensitive information in the course of investigations and
legal proceedings, and in other contexts. HREOC understands that the
ALRC has been asked to consider whether existing mechanisms adequately
protect classified and security sensitive information and whether there
is a need for further regulatory or non-regulatory measures in this
area.
HREOC's purpose
in making this submission in response to the ALRC's Background Paper
8: Protecting Classified and Security Sensitive Information (Background
Paper) is to assist the ALRC to ensure that the laws, proposals and
recommendations it reviews or considers are, as far as practicable,
consistent with the International Covenant on Civil and Political
Rights (Schedule 2 to the HREOC Act) (ICCPR), in accordance with
section 24(1) of the Australian Law Reform Commission Act 1996
(Cth).
Australia ratified
the ICCPR on 13 August 1980, which is binding upon it as a matter of
international law. The ICCPR has its own individual complaint mechanism
as provided for in the First Optional Protocol to the ICCPR (which was
ratified by Australia on 25 September 1991).

Derogation from the ICCPR

The ICCPR sets
out a procedure for the derogation from certain rights in times of public
emergency or war. Article 4 of the ICCPR provides for derogation from
human rights protectionsin times of public emergency which threatens
the life of the nation". However, that derogation provision is carefully
circumscribed so as to avoid arbitrary disregard for human rights. The
following requirements apply if Australia seeks to invoke Article 4:

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.

The United Nations
Human Rights Committee noted in its General Comment No. 29 on States
of Emergency that:

"Not every disturbance
or catastrophe qualifies as a public emergency which threatens the life
of the nation, as required by article 4, paragraph 1. The Covenant requires
that even during an armed conflict measures derogating from the Covenant
are allowed only if and to the extent that the situation constitutes
a threat to the life of the nation. If States parties consider invoking
article 4 in other situations than an armed conflict, they should carefully
consider the justification and why such a measure is necessary and legitimate
in the circumstances. On a number of occasions the Committee has expressed
its concern over States parties that appear to have derogated from rights
protected by the Covenant, or whose domestic law appears to allow such
derogation in situations not covered by article 4."⁽¹⁾

Non-derogation from certain
articles of the ICCPR

While Article
4 provides that the ICCPR may be derogated from in certain times of
public emergency, some rights under the ICCPR may not be derogated from
in a public emergency or in any other circumstances.
Article 4(2) of
the ICCPR expressly provides that no derogation may be made from Article
6 (the right to life), Article 7 (which prohibits torture or cruel,
inhuman or degrading punishment or treatment), Article 8 (paragraphs
1 and 2, which prohibit slavery or servitude), Article 11 (which prohibits
imprisonment for inability to fulfil contractual obligations), Article
15 (the guarantee against retrospective criminality), Article 16 (the
right to recognition everywhere as a person before the law) and Article
18 (the right to freedom of thought, conscience and religion).
In addition to
these non-derogable rights expressly identified in Article 4(2), other
rights have been held by the United Nations Human Rights Committee to
be non-derogable. Most relevantly, the Human Rights Committee noted
in its General Comment No. 29 that as certain elements of the right
to a fair trial under Article 14 are explicitly guaranteed under international
humanitarian law during armed conflict, there is no justification for
derogation from these guarantees during emergency situations.⁽²⁾
Therefore certain
requirements under the ICCPR in relation to investigations and legal
proceedings must be respected even during a state of emergency proclaimed
under Article 4. These include:

the right to
be tried by a court of law;
the fundamental
principles of a fair trial, including the presumption of innocence;
and
the right to
judicial review of the lawfulness of detention (habeas corpus).⁽³⁾

Current Position in Australia

Given that Australia
has not declared a public emergency under Article 4 of the ICCPR, it
is not able to invoke the derogation procedures in Article 4. Therefore
HREOC's comments are premised on the basis that Australia may not currently
derogate from its obligations under the ICCPR in any new measures which
may be proposed to protect classified and security sensitive information.

National Security Concerns

Human rights law
seeks to strike a balance between legitimate national security concerns
and the protection of fundamental freedoms. This balance is inherent
in instruments such as the ICCPR, which includes limitations in various
articles which may be invoked on grounds ofnational security" andpublic
order". For example, the right to a public trial under Article 14(1)
of the ICCPR may be limited, and the press and public excluded from
all or part of a trial, on grounds including national security or public
order.
The Human Rights
Committee has stated that such permissible limitations of ICCPR rights
provide sufficient flexibility to cater even for the demands of emergency
situations.⁽⁴⁾
The European Court
of Human Rights (ECHR) has noted that it:

".recognised the need, inherent in the Convention system, for
a proper balance between the defence of the institutions of democracy
in the common interest and the protection of human rights. Accordingly.
the Court will. take into account the special nature of terrorist
crime and the exigencies of dealing with it, as far as is compatible
with the application provisions of the Convention in the light of
their particular wording and overall object and purpose."⁽⁵⁾
While the ECHR
is prepared to take into account the background of terrorism in assessing
the actions of States,

". the Court stresses that this does not mean that the Contracting
States enjoy an unlimited discretion to subject persons within their
jurisdiction to [counterterrorism measures]. The Court being aware
of the danger such [action] poses of undermining or even destroying
democracy on the ground of defending it."⁽⁶⁾
HREOC notes that
there is effectively little or no difference between the approach the
ECHR takes to human rights and that of the Human Rights Committee. The
ECHR's jurisprudence shows that the balancing act between legitimate
national security concerns and the rights of individuals is neither
a mechanical task nor an easy one. It varies from right to right and
from situation to situation.

In September 2002, the High Commissioner for Human
Rights submitted aNote to the Chair of the Counter-Terrorism Committee:
A Human Rights Perspective on Counter-Terrorist Measures"⁽⁷⁾
, in which the general principles of the ICCPR relevant to an analysis
of counter-terrorism measures from a human rights perspective were set
out, and States were reminded of the non-derogable nature of most of
the obligations undertaken by them in ratifying the ICCPR.

A resolution specifically focussing on the need to protect human rights
and fundamental freedoms while countering terrorism was adopted by the
United Nations General Assembly on 18 December 2002⁽⁸⁾.
It affirmed that States must ensure that any measures taken to combat
terrorism comply with their obligations under international law, in
particular human rights, refugee and humanitarian law.
However, the precise parameters of the ICCPR rights remain uncertain.
As one commentator notes:

"The dividing line between an ICCPR right and its limitations
is by no means clear. Ultimately, it is up to the [Human Rights Committee].
to decide where that line lies. Therefore, the extent of the State's
human rights duties to the individual is unclear, especially at theedges"
of a right. The edges of a right may be characterized as the area
between blatant conformity with the right and blatant nonconformity.
The compatibility of a law impacting on the edges of a human right
with that human right can only be worked out on a case-by-case basis.
This uncertainty introduces flexibility to human rights interpretation,
and generates ideological and cultural debate over the content of
human rights guarantees. However, the lack of clarity in ICCPR duties
does not negate the existence of those duties." ⁽⁹⁾
It is with these principles in mind that HREOC provides the following
comments in response to the Background Paper. Given that there are currently
no proposals to modify the existing measures protecting classified and
security sensitive information, it is difficult to answer the broad
questions posed by the ALRC with precision. In addition, in many cases
there is no international jurisprudence directly on point which would
allow for a more definitive answer. HREOC's comments are therefore sometimes
necessarily general in nature. HREOC would be happy to provide further
comments on later papers if this would be of assistance to the ALRC.

Rights in investigations and
legal proceedings - Article 14 of the ICCPR

The fundamental
principles which are most relevant to ensuring information protection
measures are consistent with respect for human rights are those procedural
rights set out in Article 14 of the ICCPR.
Article 14 provides
as follows:

All persons
shall be equal before the courts and tribunals. In the determination
of any criminal charge against him, or of his rights and obligations
in a suit at law, everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial tribunal established
by law. The press and the public may be excluded from all or part
of a trial for reasons of morals, public order (ordre public) or national
security in a democratic society, or when the interest of the private
lives of the parties so requires, or to the extent strictly necessary
in the opinion of the court in special circumstances where publicity
would prejudice the interests of justice; but any judgement rendered
in a criminal case or in a suit at law shall be made public except
where the interest of juvenile persons otherwise requires or the proceedings
concern matrimonial disputes or the guardianship of children.
Everyone charged
with a criminal offence shall have the right to be presumed innocent
until proved guilty according to law.
In the determination
of any criminal charge against him, everyone shall be entitled to
the following minimum guarantees, in full equality:

To be informed
promptly and in detail in a language which he understands of the
nature and cause of the charge against him;
To have adequate
time and facilities for the preparation of his defence and to communicate
with counsel of his own choosing;
To be tried
without undue delay;
To be tried
in his presence, and to defend himself in person or through legal
assistance of his own choosing; to be informed, if he does not have
legal assistance, of this right; and to have legal assistance assigned
to him, in any case where the interests of justice so require, and
without payment by him in any such case if he does not have sufficient
means to pay for it;
To examine,
or have examined, the witnesses against him and to obtain the attendance
and examination of witnesses on his behalf under the same conditions
as witnesses against him;
To have the
free assistance of an interpreter if he cannot understand or speak
the language used in court;
Not to be
compelled to testify against himself or to confess guilt.

In the case
of juvenile persons, the procedure shall be such as will take account
of their age and the desirability of promoting their rehabilitation.
Everyone convicted
of a crime shall have the right to his conviction and sentence being
reviewed by a higher tribunal according to law.
When a person
has by a final decision been convicted of a criminal offence and when
subsequently his conviction has been reversed or he has been pardoned
on the ground that a new or newly discovered fact shows conclusively
that there has been a miscarriage of justice, the person who has suffered
punishment as a result of such conviction shall be compensated according
to law, unless it is proved that the non-disclosure of the unknown
fact in time is wholly or partly attributable to him.
No one shall
be liable to be tried or punished again for an offence for which he
has already been finally convicted or acquitted in accordance with
the law and penal procedure of each country."

HREOC sets out
below some comments in relation to the interpretation of those rights
provided for in Article 14 of the ICCPR, in response to relevant questions
in the ALRC Background Paper.

Response to questions

Question 26. What, if any,
safeguards should be imposed on the use of closed proceedings to protect
classified and security sensitive information, the rights of the parties
and of the public?

The ICCPR concept
of a fair criminal trial is based upon an adversarial model in which
the defendant is confronted by the witnesses against them, who give
oral evidence to the court, which is open to the public. However, a
major concern of countries in relation to classified information in
terrorist cases, for example, is the protection of witnesses and sources
of evidence.
Under Article
14 of the ICCPR, the press and the public may be excluded from all or
part of a trial for reasons of:

national security;
or
to the extent
strictly necessary in the opinion of the court in special circumstances
where publicity would prejudice the interests of justice.

HREOC notes that
all limitations in ICCPR rights, such as this permissible limitation
in Article 14 on the right to a public hearing in certain circumstances,
must benecessary in a democratic society". The notion of proportionality
must also be taken into account.⁽¹⁰⁾
Therefore, in
a matter which relates to "national security" and the secrecy of
important military facts, the public may be excluded from all or part
of the trial only so long as the principles of a democratic society
are observed, and only to the extent strictly necessary in proportion
to the perceived threat to national security.
State parties
must also provide reasons for not providing a public trial. In Estrella
v Uraguay (74/1980), a concert pianist tried by a military court
for conspiracy to subvert the Constitution was sentenced to four and
a half years of imprisonment in a trial held in camera. The Human
Rights Committee found that a trial in camera violates Article
14(1) of the ICCPR if the State fails to provide a reason for not providing
a public trial.
In light of the
above, safeguards upon the use of closed hearings should:

reflect the
requirement that the exclusion of the public be "necessary in
a democratic society";
reflect the
requirement of proportionality; and
ensure that
clear reasons for not providing a public trial are given and recorded.

Question 34. Do an accused's
right to a fair trial and the guarantees set out in Article 14(3) of the
International Covenant on Civil and Political Rights rule out secret hearings
and secret evidence in criminal matters? Should the minimum guarantees
provided to accused persons under the Covenant be extended to parties
in civil matters and administrative hearings?

The right to a
fair hearing is at the centre of the criminal and civil procedural guarantee
and, with respect to criminal jurisdiction, is further articulated in
the form of more specific rights in Articles 14 and 15. However, the
right to a fair trial is broader than the sum of these individualminimum
guarantees". The broader right to a fair trial applies as soon as the
government suspects that an individual has committed an offence and
continues through charge, arrest, preliminary hearings, trial, appeal,
other post-conviction review, and punishment.
The most important
criterion of a fair trial is the principle ofequality of arms" between
the plaintiff and respondent or the prosecutor and defendant. This principle
is violated if a secret hearing with secret evidence is held. HREOC
is of the view that measures may be taken to protect witnesses and classified
information without resorting to secret hearings and secret evidence
in criminal matters.
In response to
the ALRC's question as to whether the minimum guarantees provided to
accused persons in criminal matters should be extended to parties in
civil matters and administrative hearings, the right to a fair hearing
under Article 14(1) already guarantees certain essential elements to
parties insuits at law" (including, for example,the equality of arms,
the respect of adversarial proceedings, the prohibition of ex officio
penalty aggravation, and the swiftness of the procedure at all stages.")⁽¹¹⁾
An action is asuit
at law" for the purposes of Article 14 of the ICCPR in two circumstances:

if the forum
where the particular question is adjudicated is one where courts normally
exercise control over the proceedings; and
where the right
in question is subject to judicial control or judicial review.⁽¹²⁾

In V.M.R.B.
v Canada (noted in the Background Paper at paragraph 5.5) the Human
Rights Committee did not rule out the possibility that deportation proceedings
may be 'suits at law'.⁽¹³⁾
HREOC notes that
decisions in immigration and similar hearings involving classified or
security sensitive information may affect an individual's right to liberty
under Article 9, or their right to leave any country (including their
own) under Article 12(2) of the ICCPR. Given the nature of the rights
which may potentially be affected by such decisions, it may be desirable
to have further specific procedural guarantees in these circumstances.

Question 41. Should there
be any limitation of the right of a party to proceedings involving classified
or security sensitive information to receive full reasons in relation
to any judgment or decision which affects him or her? If so, when?

HREOC notes that
in most cases, judges and tribunals can give adequate reasons which
indicate the classified information relied upon, without disclosing
the nature of that classified information in the judgement or decision.
Provided that such reasons still allow the judgement or decision to
be reviewed in accordance with the right to review of a decision under
Article 14(5), the requirements of the ICCPR will be met. It will be
a question of drawing an appropriate balance in each case.

Question 42. If the need to
protect classified or security sensitive information is a ground for withholding
a full statement of the reasons for a judgment or decision from a party
to a proceeding involving such information, how can the content of the
reduced reasons for decision be sufficiently meaningful and adequate to
support any review or appeal?

See response to
Question 41, above.

Question 43. Should there
be any limitation on the publication of written reasons for any judgment
or decision in proceedings involving classified or security sensitive
information?

Article 14(1)
of the ICCPR has been interpreted to require that any judgement in a
criminal case or suit at law shall be made public (except in juvenile
proceedings or matrimonial disputes about the guardianship of children).
The right to a public judgement requires that any judgement be in writing.⁽¹⁴⁾
According to the
Human Rights Committee,even in cases in which the public is excluded
from the trial, the judgement must, with certain strictly defined exceptions,
be made public."⁽¹⁵⁾ The Human Rights
Committee does not appear to have elaborated on the meaning ofcertain
strictly defined exceptions".
In Toron v
Uraguay (7/32), the Human Rights Committee held that in the absence
of a judgement in writing, it could not examine whether the proceedings
or the severity of the sentence complied with the ICCPR. It held, among
other breaches of the ICCPR, that the trial had violated Article 14(1)
because the judgement was not made public.

Question 44. What issues arise
in relation to the withholding of recordings and transcripts of confessions
and admissions (or other material) from suspects by Australia's investigating
agencies-particularly on the basis that they would prejudice a covert
investigation or in circumstances involving the protection of classified
or security sensitive information?

Question 45. When and how
do prosecutors disclose to, and withhold from, the defence classified
or security sensitive information prior to trial? Are these methods effective?
How is prejudice to the accused minimised? Are further safeguards required?

In response to
Questions 44 and 45, HREOC notes that restrictions on the material disclosed
by prosecutors to the defence poses problems throughout the course of
the criminal process. If the ordinary rules are modified, there is the
risk of running an unfair trial where the evidence gathering process
does not protect the elementary rights of a defendant.
A defendant is
entitled toequality of arms" with the prosecution in the opportunity
to influence the court. This implied principle of the right to a fair
trial is pervasive, covering not only the trial procedure itself, but
extending to the collection and use of evidence.
At the beginning
of the process, Article 14(3)(a) of the ICCPR requires that everyone
charged with a criminal offence has the right to be informed promptly
and in detail of the nature and cause of the charge, including the alleged
facts on which the charge is based. In its General Comment on Article
14, the Human Rights Committee stated that this provision applies to
all cases of criminal charges, including those of persons not in detention.⁽¹⁶⁾
The Committee further indicated that:

".the right to be informed of the charge 'promptly' requires that
information be given as soon as the charge is first made by a competent
authority. In the opinion of the Committee this right might arise
when in the course of an investigation a court or an authority of
the prosecution decides to take procedural steps against a person
suspected of a crime or publicly names him as such." ⁽¹⁷⁾
The Human Rights
Committee has stated that the function of the notice requirement is
to enable a person to take immediate steps to secure their release if
they are detained and believe the reasons are invalid. It has also emphasised
that this purpose requires that the notice includes details of the charges.
In Caldas v
Uraguay (43/1979), where an individual was arrested and told only
that the arrest came underprompt security measures", the Human Rights
Committee determined that he was not given sufficient details to indicate
the substance of the complaint against him.
Further elucidation
of the requirement that the prosecution should disclose all material
evidence, both for and against the defendant, to the defence is found
in ECHR jurisprudence.⁽¹⁸⁾ Like many other
defence rights, this right to disclosure is not absolute. Particularly,
for example, in terrorist trials, the government may wish to keep the
sources of some of its evidence from the defence. If it does, it must
have in place a procedure which, so far as possible, satisfies the principle
of equality of arms.⁽¹⁹⁾ Such procedures
are crucial, given that the non-disclosure of evidence was a substantial
component in many miscarriages of justice in terrorist trials in the
United Kingdom.
Restrictions on
material disclosed by prosecutors may also raise issues under Article
14(3)(e) of the ICCPR, which provides that everyone charged with a crime
has the right to obtain the attendance and examination of witnesses
on their behalf under the same conditions as the witnesses against them.
This right is an essential element ofequality of arms", and therefore
of a fair trial (as noted at paragraph 6.9 of the Background Paper).
The ECHR has conceded that the right of a defendant to call witnesses
and to confront and cross-examine witnesses against him are not absolute
rights where there is a compelling reason for encroaching on these rights.⁽²⁰⁾
However, the arrangements must be the least adverse to the defendant
as is possible in the circumstances, and the evidence given under these
special arrangements should not be the major item in the case against
the defendant. Thus, in limited circumstances, the prosecution need
not reveal the sources of intelligence evidence or security personnel
may give their evidence anonymously or behind screens, as do informers.⁽²¹⁾
Where a court allows evidence to be given in such circumstances, it
is required that there be appropriate measures to assess the necessity
for doing so, in which the defence can take part (to the extent that
the purpose of the protective measures is not undermined).⁽²²⁾

Question 61. Is there a need
to consider a special category of defendant where some of the normal protections
usually afforded to a criminal accused are withheld in order to protect
classified and security sensitive information?

Question 62. If so, what modifications
of these protections should be considered? Would such modifications be
consistent with Australia's obligations under international law?

In response to
Questions 61 and 62, HREOC notes that where there are modifications
to the ordinary criminal law, whether on the admission of evidence or
in relation to witnesses, the question will be whether the prosecution
has presented evidence capable of satisfying the burden of proof and
whether the defence has had an opportunity to influence the tribunal
at least to the same extent as the prosecution. An important consideration
is that, wherever the rights of the defendant are diminished, so far
as possible there should be some compensating protection. In PG and
JH v United Kingdom, the ECHR, finding no violation, said:

". as far as possible, the decision-making procedure complied
with the requirement of adversarial proceedings and equality of arms
and incorporated adequate safeguards to protect the interest of the
accused." ⁽²³⁾
There is in that
approach some flexibility for States in the PG and JH decision
by reason of the wordsas far as possible", and some protection for accused
persons inadequate safeguards". Of course, conclusive, abstract assessment
of any discrete proposal to modify criminal procedure is difficult and
HREOC merely seeks to draw attention to these general principles which
should be considered.

Question 71. Should the protections
afforded to accused people in criminal trials involving classified or
security sensitive information-including the right to be tried in their
presence, to defend themselves personally or through legal assistance
of their choosing, and to examine the witnesses against them-extend to
people facing all, or particular, types of immigration and similar hearings
involving such information?

See response to
question 34, above.

Question 77. Does the protection
of classified and security sensitive information require Australia to
consider creating or adapting specialist tribunals or military commissions
such as those in the United States of America?

Since in most
countries military courts are empowered to decide on military offences
by soldiers, and since Article 2(1) does not expressly proscribe distinctions
between civil and military persons, the existence of military courts
does not violate Article 14 when the other guarantees under this provision
are observed. More difficult to answer is whether military courts may
decide on charges against civilians. The Human Rights Committee has
noted that this could be justified only in exceptional cases under conditions
which genuinely afford the full guarantee of a fair trial.⁽²⁴⁾
The most fundamental
change a country can make to its justice system is to create a separate
system of courts or tribunals to try certain offenders. A further question
will be whether these courts are "independent and impartial" under
Article 14(1), or whether, in actuality or appearance, members of them
are susceptible to executive influence.
In Incal v
Turkey⁽²⁵⁾, the ECHR found that the
National Security Courts in Turkey did not satisfy the standards of
independence and objective impartiality because of the presence of a
military legal officer as one of the judges of the three-judge court.
The ECHR noted that the defendant could reasonably be suspicious about
the role of the military judge, given that he remained a serving soldier
and his future career prospects were dependent on decisions of his military
superiors, and the military had an interest in the decisions of the
special National Security Courts.⁽²⁶⁾
Although the judgement is very sparse, the ECHR said that Mr Incal did
have objective grounds for doubting the independence and impartiality
of the court before which he was tried.
Even where special
courts do satisfy the standards of Article 14, the question remains
as to what protection an individual is entitled to when the decision
is made that their case will go before a special tribunal rather than
an ordinary criminal court (there is a hint in Incal that the
ECHR has concerns about inappropriate cases being heard by special courts).⁽²⁷⁾
The Human Rights Committee has decided that the decision must be made
on the basis of reasonable and objective grounds communicated to the
individual, so that the special power cannot be abused by sending ordinary
criminal suspects to the special jurisdiction.⁽²⁸⁾

Conclusion

Given that Australia
has not declared a public emergency under Article 4 of the ICCPR, it
is not able to invoke the limited derogation procedure which that article
provides. Therefore, to the extent any proposals are made for new regulatory
measures to protect classified information or security sensitive information
in the course of investigations and court and tribunal proceedings,
these measures must conform to the human rights principles set out in
the ICCPR.
The balance between
implementing measures for the protection of national security 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 measures are proposed that may infringe human rights,
then great care should be taken in framing and implementing those measures.

Human Rights Committee, General Comment 29, States of Emergency (article
4), U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001) at paragraph 3.
Ibid, paragraph 16.
Human Rights Committee, General Comment 29, States of Emergency
(article 4), U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001) at paragraphs 11
and 16. See also the Human Rights Committee's concluding observations
on Israel in 1998:. The Committee considers the present application
of administrative detention to be incompatible with articles 7 and 16
of the Covenant, neither of which allows for derogation in times of
public emergency . The Committee stresses, however, that a State party
may not depart from the requirement of effective judicial review of
detention."
Human Rights Committee, General Comment 29, op.cit, paragraph
5.
Fox, Campbell and Hartley v United Kingdom (A/182) (1988), paragraph
42.
Klass v Germany (A/28) (1978), paragraph 48.
See http://www.un.org/Docs/sc/committees/1373/, Briefings, 24 September
2002.
(A/RES/57/219).
Joseph S,A Rights Analysis of the Covenant on Civil and Political Rights"
(1999) 5 Journal of International Legal Studies 57 at 79-80.
Joseph S, "A Rights Analysis of the Covenant on Civil and Political
Rights" (1999) 5 Journal of International Legal Studies 57
at 78. The principle of proportionality in relation to the limitations
in certain ICCPR rights was considered in Faurisson v France
(550/93). The author was a professor of literature at the Sorbonne University
who was removed from his chair and convicted under France's Gayssot
Act which prohibited the publication of opinions that denied the occurrence
of the Holocaust. He argued that his right to freedom of expression
had been curtailed. The Committee found that his conviction was justifiable
under the limitation to Article 19, as it was a necessary and proportionate
measure (under Article 19(3)(a), which permits restrictions on the right
to freedom of expressionfor respect of the rights and reputations of
others").
Weissbrodt D, The Right to a Fair Trial: Articles 8, 10 and 11 of
the Universal Declaration of Human Rights (Kluwer Law International,
The Hague, The Netherlands: 2001) at 125.
See Weissbrodt D, op. cit. at 139; see also Y.L. v Canada
(112/81) and Casanovas v France (441/90).
The Human Rights Committee noted in that case: "With respect to article
14, the Committee notes that even if immigration hearings and deportation
proceedings were to be deemed to constitutesuits at law" within the
meaning of article 14, paragraph 1, of the Covenant, as the author contends,
a thorough examination of the communication has not revealed any facts
in substantiation of the author's claim that he is the victim of a violation
of this article."
Weissbrodt D, op.cit. at 146.
General Comment 29, op. cit., paragraph 6.
Human Rights Committee, General Comment 13, Article 14, paragraph
8.
Ibid.
Edwards v United Kingdom (A/247B) (1992) at paragraph 36.
Rowe and Davis v United Kingdom (16/02/2000) at paragraphs 60-67.
Van Mechaln v Netherlands (1997-III) 691 at paragraph 58.
Doorson v Netherlands (1997) (1996-II) 446 at paragraph 72.
Rowe and Davis v United Kingdom (16/02/2000) at paragraph 62.
(25/09/2001) at paragraph 73.
Human Rights Committee, General Comment 13, Equality before the courts
and the right to a fair and public hearing by an independent court established
by law (Art. 14) 13/04/84. CCPR General comment 13, paragraph 4.
(1998-IV) 1547.
Ibid, paragraph 72.
Ibid.
Kavanagh v Ireland (819/1998).

Last
updated 19 September 2003.

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Submission to the Law Reform Commission

SUBMISSION OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION TO THE AUSTRALIAN LAW REFORM COMMISSION IN RESPONSE TO BACKGROUND PAPER 8: PROTECTING CLASSIFIED AND SECURITY SENSITIVE INFORMATION

Introduction

Derogation from the ICCPR

Non-derogation from certain articles of the ICCPR

Current Position in Australia

National Security Concerns

Rights in investigations and legal proceedings - Article 14 of the ICCPR

Response to questions

Question 26. What, if any, safeguards should be imposed on the use of closed proceedings to protect classified and security sensitive information, the rights of the parties and of the public?

Question 41. Should there be any limitation of the right of a party to proceedings involving classified or security sensitive information to receive full reasons in relation to any judgment or decision which affects him or her? If so, when?

Question 43. Should there be any limitation on the publication of written reasons for any judgment or decision in proceedings involving classified or security sensitive information?

Question 45. When and how do prosecutors disclose to, and withhold from, the defence classified or security sensitive information prior to trial? Are these methods effective? How is prejudice to the accused minimised? Are further safeguards required?

Question 61. Is there a need to consider a special category of defendant where some of the normal protections usually afforded to a criminal accused are withheld in order to protect classified and security sensitive information?

Question 62. If so, what modifications of these protections should be considered? Would such modifications be consistent with Australia's obligations under international law?

Question 77. Does the protection of classified and security sensitive information require Australia to consider creating or adapting specialist tribunals or military commissions such as those in the United States of America?