New terrorism laws should adhere to human rights principles
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13 September 2005

President of the Human Rights and Equal Opportunity Commission, John von Doussa QC, said today it is vitally important that the federal Government adheres to human rights principles when developing new counter-terrorism laws.

Mr von Doussa said that pioneering States (including Australia) who drafted international human rights instruments like the International Covenant on Civil and Political Rights (ICCPR) envisaged that there would be occasions when some human rights principles set out in the covenant would be justifiably infringed by States in times of public emergency. In fact, a procedure for the derogation from certain fundamental rights was provided in Article 4 of the ICCPR which applies 'in times of public emergency which threatens the life of the nation'.

"Some rights, such as 'the right to life' and 'the right not to be tortured' remain sacrosanct. With other rights, such as 'the right not to be arbitrarily detained', the power of derogation is carefully restricted to avoid States disregarding them when they wish," Mr von Doussa said.

Derogation from those rights may only take place in carefully defined circumstances. These include official proclamation of a 'public emergency' at the domestic level, and notification of the other State parties to the ICCPR.

"The Australian Government has never suggested that it relies upon Article 4 when enacting counter-terrorism legislation. However, my Commission and some notable international law experts have said that some of the counter-terrorism laws already enacted by the government do infringe rights protected by the ICCPR," the President said.

"The proposed new laws appear to give rise to further and more serious potential infringements and the government should be clear now whether it is, in fact, using the derogation procedure.

"This is not simply a matter of process - the derogation procedure is a mechanism designed to ensure that departures from the covenant based upon security concerns are closely scrutinised, both domestically and internationally. Australia stands to be criticised in the international community if it does not make clear to its citizens and the world what its position is in respect of its international human rights obligations."

The President said there are also some significant substantive requirements under Article 4. In particular, the security measures taken by a government must meet the requirement of 'proportionality' - the means must be proportional to the purpose.

"New proposals for 'control orders' and 'preventive detention' reflect legislation recently enacted in the UK, however respected bodies such as the International Council of Jurists have criticised this legislation for failing to meet the proportionality test. Australia should be wary that it does not import legislation from other countries which may violate human rights standards."

Another issue raised by the Council for Europe's Commissioner for Human Rights in relation to UK's new terrorism legislation is the relatively weak judicial control over these new measures. Close judicial supervision is essential to ensure Australians are better protected from the potential abuse of these measures.

A related issue arises from the federal Government's suggestion that there is a need for State legislation to be introduced due to a constitutional impediment to the Commonwealth legislating for preventative detention greater than 48 hours. While this view may or may not be correct, one consequence of the Commonwealth's proposed approach will be to avoid the High Court's jurisdiction over Commonwealth officers under section 75(v) of the Constitution. A former Chief Justice of Australia, Sir Gerard Brennan, has described the right of judicial review under this section as 'the lynch pin of freedom under the law in Australia'. Strong alternative review rights, perhaps to state courts, should be included in the legislation.

"I support the general approach of the government in continuing to review and update Australian counter-terrorism legislation and agree that some of the new terrorism offences should be clarified. For example, the offence of associating with terrorist organisations at present is too broadly defined," Mr von Doussa said.

"However, the bottom line is that all of these 'unusual' measures should be exposed, on a regular basis, to careful and public scrutiny. An obvious way of doing this is to include sunset clauses, which will ensure that Parliament periodically considers the measures afresh to ensure that they are still proportional to the threats of the time."