Submission of the Human Rights and Equal Opportunity Commission p1

New terrorism laws should adhere to human rights principles. John von Doussa QC

Extreme Changes Kate Ellis MP not punishing people Senator Despoja responsive politicians PC How To: Antonios Symeonakis People need practical help Senator Linda Kirk For the benefit of all Australians Senator Grant Chapman

Senate Legal and Constitutional Legislation Committee inquiry into the Anti-Terrorism Bill (No 2) 2005

Submission of the Human Rights and Equal Opportunity Commission

11 November 2005

Introduction

1. The Human Rights and Equal Opportunity Commission (‘the Commission’) is established by the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘HREOC Act’). It is Australia's national human rights institution.

2. Its functions are set out in section 11(1) of the HREOC Act and include the power to promote an understanding and acceptance, and the public discussion, of human rights in Australia.

3. In this submission, the Commission limits itself to the human rights issues arising from the Anti-Terrorism Bill (No 2) 2005 (the ‘Bill’).

4. In raising those issues, the Commission asks this Committee to accept that international human rights law is not an ‘optional extra’ during times of concern about international terrorism. Nor is it an open ended variable to be adjusted according to particular national security needs. Such an approach implies that human rights are somehow antithetical to issues of national security, necessitating a compromise or trade off.

5. This ignores the fact that international human rights law was forged in the wake of devastating periods of global conflict and already strikes a balance between security interests and the rights which are considered fundamental to being human. It allows for protective actions to be taken by states, but demands that those actions remain within carefully crafted limits – most notably proportionality (which is discussed further below).

6. Concerns about the heightened risks of domestic terrorist attacks are plainly legitimate and require innovative measures on the part of all responsible states, including Australia. However, international human rights law was crafted for precisely these times. It provides clearly identifiable landmarks to guide the Australian government in the implementation of such measures in a period characterised by considerable uncertainty.

7. Australia can and should be proud of an excellent human rights record during less difficult times. It should lead the way in staying true to its international obligations in this more challenging era.

8. The Commission’s submissions are limited to schedules 4 and 7, where it considers the proposed provisions could give rise to significant breaches of international human rights norms which Australia has undertaken to respect and ensure to all individuals within its territory and subject to its jurisdiction: see article 2 of the International Covenant on Civil and Political Rights ("ICCPR"). In considering those obligations, the Commission notes that the Australian government has not sought to use the procedure in article 4 of the ICCPR, which allows derogation from certain provisions of the ICCPR in times of declared emergency.¹ The Commission has therefore assumed that the government intends to remain bound by its human rights obligations and has sought to evaluate the Bill against those standards.

9. The Commission was particularly concerned that the laws proposed in the original 7 October 2005 draft of the Bill could substantially infringe many fundamental human rights by denying realistic access to courts to review the facts on which preventative detention or control orders were based, and to review the necessity and proportionality of those orders against the

1 Which provides: In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.