Australian Capital Territory

^{HUMAN
RIGHTS OFFICE}

Level 12, 14 Moore Street GPO Box 158

Canberra City 2601 CANBERRA ACT 2601

TTY: (02) 62070525 Tel: (02) 62070576

ACT Government Homepage: http://www.act.gov.au Fax: (02) 62070587

Mr Jon Stanhope, MLA

Chief Minister and Attorney-General

ACT Legislative Assembly

GPO Box 1020

CANBERRA ACT 2601

Dear Mr Stanhope,

Re: Council of Australian Government’s meeting - potential human rights implications of proposed measures to strengthen counter terrorism laws.

Thank you for your request of 9September 2005 to advise you about some of the potential human rights implications of the Prime Minister’s proposals on counter terrorism, as announced in his media release of 8September 2005. My short advice is that, depending on the detail, such laws if enacted in the ACT could potentially contravene the Human Rights Act 2004 ACT (HR Act) in a number of significant ways, particularly in regard to the rights to liberty, fair trial and privacy. A number of the proposals are preventive in nature, meaning that the executive may bypass many ordinary criminal law procedures and protections to varying degrees.

The proposals are designed to enable better deterrence, prevention, detection and prosecution of terrorist acts, and some have been developed as a result of reviews following the recent London bombings. In all instances the central question is whether the means suggested are proportionate to the legitimate objectives of protecting the Australian community from terrorism. This can only be properly assessed when the draft legislation is available.

As there is not sufficient time to respond to all of the 12 different proposals, comments are concentrated on two proposed areas for the exercise of ACT powers, preventive detention of up to 14 days and increased police powers to stop, question and search based on suspicion of terrorist activities in non-Commonwealth areas, and two of the most significant proposals within Commonwealth jurisdiction, namely control orders (which rely on referral of powers from States) and the new offence of inciting violence to replace the offence of sedition. The proposed legislation will add to the existing anti-terrorist amendments to laws passed between 2002 and 2004.¹ As these proposals only relate to current terrorist threats they should be subject to sunset clauses, as is the case with new ASIO powers. Some of the objections referred to in my advice to you of 30 August 2004 about the Anti-terrorism Act (No. 2) 2004 still remain - if these provisions were enacted in the ACT, they would contravene several provisions in the HR Act, particularly the right to freedom of association.

General implications of anti terrorism legislation at ACT and Commonwealth levels

Terrorism is a matter of international concern and has been the subject of debate in the United Nations. Paragraph 6 of the UN Security Council Resolution 1456 of 2003 clearly states that States Parties ‘must ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt measures in accordance with international law, in particular international human rights, refugee, and humanitarian law’. The former UN High Commissioner for Human Rights, Mary Robinson, issued a statement setting out criteria for protecting human rights in the context of implementing anti-terrorism measures, and recommended that laws use precise criteria and not confer unfettered executive discretion. These principles require that restrictions be:

prescribed by law (that is, they are not arbitrary in substance);
necessary for public security or public order (there is a pressing social need);
not impair the essence of the right;
necessary in a democratic society (they are a product of consensus);
in conformance with the principle of proportionality;²
appropriate to achieve that aim;
the least intrusive means to achieve the aim of the measures;
respectful of the principle of non-discrimination; and
not arbitrarily applied.³

Australia’s human rights obligations under the ICCPR need to be fulfilled and respected in the proposals aimed at preventing and eliminating terrorism. They will be developed in a democratic context and there may be broad consensus in the Australian community to pass the proposed laws, although several commentators have criticised some of these measures as being draconian.⁴ In general the vagueness of the terms of the proposed offences, and the breadth of their coverage may be excessive and fail the principle of legality because of their arbitrariness.⁵ There is a pressing social need to counter terrorism, but overly broad measures in the proposed laws may not be proportional to that need, nor the least restrictive means of achieving the aim of suppressing and preventing terrorism. Without drafts of specific proposed laws it is difficult to make firm conclusions, so this advice highlights potential human rights implications.

Governments have a positive obligation to take measures necessary within their jurisdiction to protect individual lives against terrorist acts (article 6(1) of the ICCPR, and s.9 (1) of the ACT HR Act). If current laws are inadequate to provide this protection against the actual level of risk, then additional laws should be enacted to protect against the current threat for a limited time period. All counter-terrorism measures must operate within a human rights framework, which imposes certain basic requirements in addition to the points above. For example, they must respect the basic principles of a fair trial, be subject to proper judicial supervision, and must not involve torture, or use information or intelligence that is the product of torture.⁶ There is no suggestion that the proposals involve techniques that have been held by courts to amount to inhuman treatment.⁷

The Council of Europe and the International Commission of Jurists (ICJ) have also produced Guidelines and Recommendations of anti-terrorism laws.⁸ Article 3 of the ICJ’s Berlin Declaration states that:

‘States should avoid the abuse of counter-terrorism measures by ensuring that persons suspected of involvement in terrorist acts are only charged with crimes, which are strictly defined by law that are not retroactive, and in conformity with the principle of legality (nullum crimen sine lege).⁹ States may not apply criminal law retroactively. They may not criminalise the lawful exercise of fundamental rights and freedoms. Criminal responsibility for acts of terrorism must be individual, not collective. In combating terrorism, states should apply, and where necessary adapt, existing criminal laws rather than create new, broadly defined offences or resort to extreme administrative measures, especially those involving deprivation of liberty.’

In assessing new legislation it is important also to recognise the effect that overly coercive measures may have on minority groups who have the right to protection under article 27 of the ICCPR (and s.27 of the ACT HR Act). The proposals may have a disproportionate impact on Muslim communities, and they should be consulted. Alternative means of achieving these goals that will have less impact on racial equality should be considered. The impact of anti-terrorist legislation on minority groups has been well researched in overseas jurisdictions.¹⁰ Repressive and discriminatory laws can be counter-productive by pushing extremists underground, and exacerbating alienation from moderate communities.¹¹ It is important that these measures do not contravene the Racial Discrimination Act 1975, Commonwealth or similar State and Territory laws (for example the ACT Discrimination Act 1991) by directly or indirectly discriminating against minority populations.

ACT JURISDICTION

Preventative detention

The proposal seeks the cooperation of Territories and States to enact legislation providing for 14 days of preventative detention of persons concerned with the commission of terrorist offences in order to prevent terrorist attacks and further incidents (including escalation of), as well as to prevent suspects absconding or destroying evidence. The threshold issue is whether the person is ‘reasonably suspected’ of having just committed, might be committing or might be about to commit a terrorist offence – these criteria are very broad, like the ones discussed below in relation to police stop, search and seizure powers. This proposal is modelled on the UK power to detain terrorist suspects for 14 days in exceptional circumstances. It is differs from existing Federal powers under which people who are not terrorist suspects can be detained for the purpose of questioning, eg a university student was interviewed by ASIO after borrowing library books for his research on terrorism.¹²

It appears that this proposed administrative detention is without arrest, charge or trial. Authorisation of detention is to be by a senior police officer and must be reviewed by an independent person after 24 hours. However, it is unclear whether there will be rights to legal representation, and judicial authorisation or review. The main accountability mechanisms for the regime are overview by the Ombudsman and Inspector-General of Security, as well as an annual reporting process, which in my view are not adequate to fully protect human rights. The Commonwealth recognises that to extend detention beyond the 48 hours under current law would be a ‘penalty’, and under the doctrine of separation of powers in the Australian Constitution, this requires a judicial rather than an administrative process. It appears this is the reason the Commonwealth government seeks the States’ and Territories’ cooperation. It has been suggested by a journalist that it is also beyond the powers of the Territory to enact such legislation for the same constitutional reason,¹³ but I am not confident that this view is correct and suggest that you seek expert constitutional legal advice on the plenary Territories powers.¹⁴

I believe that a provision allowing detention for 14 days preventative detention without charge or arrest, and possibly without access to a court and a lawyer is contrary to the right to liberty in s.18 of the ACT HR Act. Subsection 18(6) specifically states that anyone deprived of liberty by detention must have access to judicial review as s/he is: ‘entitled to apply to a court so that the court can decide, without delay, the lawfulness of the detention and order the person’s release if the detention is not lawful’. This right of access to a court does not need to be performed ex officio by the State, but is up to the detainee to instigate, for example through a writ of habeas corpus. This right includes access to a lawyer in order to test the lawfulness of detention. The Human Rights Committee found a breach of Article 9(4) (the equivalent section to s.18 (6) of the ACT HR Act) in Hammel v Madagascar where a detainee was held incommunicado for three days without access to a lawyer.¹⁵ The cases Berry v Jamaica and A v Australia also clearly find that there is a right of access to a lawyer under Article 9(4).¹⁶ The European Court of Human Rights also establishes that there is a right of access to a lawyer to enable effective application for release from detention.¹⁷

There is little jurisprudence on the exact time period of detention allowed before being taken before a judge. The European Court of Human Rights held in Brogan v UK that detention for 4 days and six hours under the UK Prevention of Terrorism (Temporary Measures) Act 1984 breached article 5(3) of the European Convention on Human Rights.¹⁸

In general comments the Human Rights Committee, which monitors compliance with the ICCPR, has clarified that use of preventive detention for public security reasons must still comply with the obligations in article 9 (s.18 of the HR Act): it must not be arbitrary, it must be based on grounds and procedures established by law, information on the reasons must be given, and court control of the detention must be available.¹⁹

The common law does not sanction preventative detention. As an exercise of judicial power ‘citizens enjoy… at least in times of peace a constitutional immunity from being imprisoned… except pursuant to an order of the court in the exercise of the judicial power of the Commonwealth’.²⁰ At the ACT level a breach of s.18(6) of the HR Act would need to proportionate under s.28 in order to be valid (see Appendix on s.28).

In the 1970s Northern Ireland used preventive detention, known as ‘internment’, where suspected terrorists were unlikely to be convicted by a criminal court, partly because of widespread fear and intimidation of witnesses, which is not the case in Australia.²¹ However, the antagonism of the community caused by internment was regarded as a strong motivation in recruiting new Irish Republican Army members.²² It would be paradoxical for suspects to be detained without trial, while persons properly charged with terrorism offences on the basis of stronger evidence have the full benefits of the right to a fair trial.

The government must show that the legitimate objective of protecting the community from danger is proportionate to the degree of harm could not be achieved by alternative means that involved less restriction on the right to liberty. The period of 14 days detention is too long and an alternative should be considered, such as lesser periods that may be renewed, but all of which at least are subject to judicial authorisation or review. For these reasons I do not consider it likely that the breach of s.18 (6) would be proportionate under s.28.

Extending police powers in non-Commonwealth areas

The proposal seeks the cooperation of States to enact legislation that extends police powers without warrant at transport hubs and places of mass gatherings in areas outside of Commonwealth jurisdiction. The Prime Minister’s media release implies that these powers would be similar to those proposed for the AFP at airports and other Commonwealth places. The extent of these powers is unclear – they appear to include requiring a person to provide name, address, evidence of identity, and reason for being in the place, as well as searching the person (it is unclear whether this will be a frisk, or more intrusive strip or internal search) and his or her property. There may be a limitation on their coverage through requiring the appropriate Attorney-General to specify an area in writing as a ‘declared security zone’ for a maximum period of 28 days. In the case of the ACT this issue is complicated by the lack of a separate police force - the AFP provides services under contract to the ACT government.

The three terms, where there are reasonable grounds for suspecting that a person ‘might have just committed, might be committing or might be about to commit a terrorism offence’ lack precision, and the third is particularly loose, to the extent that they may be classified as arbitrary. Also the Human Rights Committee has made adverse comments in Concluding Observations about laws in Ireland enabling the arbitrary arrest of a person ‘on suspicion of being about to commit an offence’.²³

The main human rights engaged by stop, search and seizure powers are the right to privacy and reputation (s.12), the right to freedom of expression (s.16), the right to a fair trial (ss.21 and 22) and freedom of conscience, thought and religion (s.14). These rights, singly or in conjunction with each other can limit the extent to which it is possible to stop and search persons in these places and seize property. These stronger stop, search and seizure powers also appear to include random baggage searches without a reasonable suspicion, for example opening bags to conduct explosive trace detection tests.

The right to privacy in s.12 encompasses public as well as private areas, as ‘the sphere of a person’s life in which he or she can freely express his or her identity, be it by entering into relationships with others or alone’.²⁴ It encompasses peoples’ activities in their professional and personal lives, eg searches of office files.²⁵ The right should not be subject to ‘unlawful or arbitrary’ interference. The term ‘unlawful’ means that no interference can take place unless authorised by the law. Furthermore the law must be precise and circumscribed so as not to give police too much discretion in authorising interferences with privacy.²⁶ The term ‘arbitrary’ is intended to guarantee that even interference provided for precisely by law should be in accordance with the provisions, aims and objectives of the HR Act and should be reasonable.

Stop, search and seizure powers must pursue a legitimate aim, they must contain safeguards against abuse, and there must be no other less intrusive methods of obtaining the information required. The police powers of stop, search and seizure must be exercised in practice in a manner that is consistent with dignity and proportionate, and does not amount to harassment. A warrant is not essential before a search takes place, but in the absence of such a warrant the proportionality test will be strictly applied to ensure a minimum of interference with the privacy right.²⁷ In Funke v France it was held that the wide powers of officials to assess the expediency, nature number length and scale of inspections were unduly wide and were therefore disproportionate.²⁸ Canadian case law provides that search and seizure powers must be exercised with prior authorisation by someone capable of acting judicially and independently, weighing the conflicting interests of law enforcement and individual rights.²⁹ In this case it seems that police are to be given powers without an authorisation process. However, the mechanism for requiring the Attorney-General to declare specified areas for a limited time may make these provisions more proportional if there are strong grounds supporting the view that there is an emergency situation. The terms ‘for the prevention of, or in response to terrorism’ appear to be overly general and wide.

COMMONWEALTH JURISDICTION

Control Orders

The suggested control orders granting increased powers ‘where a person might pose a risk to the community, but cannot be contained or detained under existing legislation’, for example they cannot be prosecuted because an offence is not available, or evidence is not admissible. They appear to be modelled on control orders in the UK Prevention of Terrorism Act 2005 (‘Terrorism Act’) under which the Secretary of State may request a court to make a non-derogating order if there are reasonable grounds for suspecting a person is or has been involved in terrorist related activities, and it is necessary for public protection to impose these obligations.³⁰ This UK law was enacted because previous legislation was held to be incompatible with the UK Human Rights Act 1998.³¹ The UK government justified the use of more intense overt surveillance of individuals suspected of involvement in international terrorism because it was considered to be preferable on human rights grounds to detention. The UK orders can confine a person to his home, control access to the telephone or internet, and restrict whom they meet or associate with.³² Some hearings may involve secret evidence and closed hearings, with special counsel appointed by the Attorney-General to represent the subject of the order, but without his or her presence, or knowledge of proceedings.

The Australian Prime Minister proposes to introduce twelve-month control orders, on application by the Australian Federal Police to a court, using the grounds of reasonable belief that the order will substantially assist against the commission of a terrorism offence and is necessary to restrict the person’s activities for the purpose of protecting members of the public from terrorism. These orders could contain strict conditions on a person’s movements and activities, and include electronic tracking devices, curfews, travel, communication and association. These restrictions are much more extensive than those available under current State and Territory legislation governing apprehended violence orders. Procedurally a control order will be similar to a apprehended violence order, which has a lower standard of proof, and can be imposed by a court ex parte, pending a final order. In both cases ex parte orders may last for a considerable period of time, and may be extended. In emergencies an interim order can be issued with a full hearing as soon as practicable afterwards. As a result there can be considerable delays before the respondent has an opportunity to be heard. There are also proposed review powers, including consideration of the person’s health and welfare, as well as an inbuilt operational review. Although an order can be imposed for a maximum period of 12 months, there may be no restriction on renewals. Breach of an order is punishable by up to 5 years’ imprisonment.

This proposal poses particular human rights issues. Ex parte and interim orders themselves will substantially restrict a person’s human rights if there is no right to be heard under article 14(1) of the ICCPR (and article 14(2) if they are characterised as ‘criminal’ in character). However, this might be justified as proportionate because of the purpose of the orders, as well as ability of the court to review the final order in the presence of the party subject to the order. Final orders infringe human rights by restricting travel (freedom of movement (article 12(1)) and by imposing curfews or tagging devices (privacy and reputation (article 17(1)) and by limiting membership of groups or associations (article 22). In commenting on the tagging devices the UK Joint Committee on Human Rights stated:

‘intense surveillance is ... a grave interference with the right to respect for private life, and should therefore only be used in cases where the only alternative would be detention. Such surveillance might include electronic monitoring, but this would of course also have to be subject to proper procedural safeguards. For example, the consent of the person being monitored would have to be obtained before they are fitted with any monitoring device.’³³

In practice it is not very likely that people will consent to such monitoring, unless it is the only alternative to detention. Because of restrictions on the availability of protected evidence relating to security to the respondent, it may in practice be very difficult for him/her to establish a case for an order to be revoked. These orders have serious restrictions on human rights and need to have considerable safeguards built into them. Making orders only obtainable from and reviewable by courts is protective of human rights, but the extent of specific restrictions on human rights needs to be justified as proportionate in the particular case, that is they must be tailored to the individual’s circumstances. Liberty, a UK non-government organisation, has criticised the lack of connection in control orders of the alleged involvement and the restrictions imposed.³⁴

Control orders may in some cases involve a restriction on liberty, as opposed merely to restrictions on freedom of movement. For instance the control order may subject the person to house arrest,³⁵ which engages the right to liberty in article 9. Under this article the deprivation of liberty must be ‘lawful’ which implies that it is ‘accessible and precise’. The law must be sufficiently precise for people to be able to regulate their conduct to avoid infringement.³⁶ It must not be ‘arbitrary’, that is, its aims must be in keeping with the purpose of article 9, and with the purpose of the anti-terrorism law. Detention imposed on grounds of dangerousness by reference to characteristics, which are susceptible to change with the passage of time will become arbitrary if those characteristics are no longer present.³⁷ Also being preventative rather than punitive in design, it would be subject to risk assessment and may be unreliable.³⁸

The UK Joint Committee on Human Rights, in commenting on proposed control orders, expressed concern about what sorts of risks to the public interest (for example assistance, support, incitement, association) should justify their use, and what restrictions on liberty it should be possible to impose. Such orders would have to be accompanied by sufficient procedural safeguards, such as access to an independent judicial determination of whether the underlying allegation was well-founded, and the type of restrictions imposed would have to satisfy a test of strict necessity in order to be proportionate. The Council of Europe’s Commissioner for Human Rights notes with concern that:

‘control orders are intended to substitute the ordinary criminal justice system with a parallel system run by the executive…What is essential is that the measures themselves are proportionate to the threat, objective in their criteria, respectful of all applicable rights and, on each individual application, justified on relevant, objective, and not purely racial or religious grounds.’³⁹

As these ‘house arrest’ type orders breach the right to liberty in the UK HR Act, the UK Terrorism Act provides an opt out clause and special procedures for these orders. The ICCPR, which Australia is a State Party to, contains extra rights to those in the European Convention on Human Rights, on which the UK HRA is based - namely the right to freedom of movement, and stronger protections for minority groups. On the other hand it is relevant that Australia does not have a Bill of Rights that these proposals can be independently measured against by domestic courts,⁴⁰ as in the UK, which has enacted the Human Rights Act 1998. These differences need to be considered in comparing the two jurisdictions.

Creating new Federal offences

It is proposed to introduce a new offence of ‘inciting violence against the community’ to replace the existing sedition offence. It is very unclear what the inter-relationship will be between this proposed offence and existing Commonwealth, State and Territory laws protecting against racial and other vilification, for example religion in Victoria. The Council of Europe’s Commissioner for Human Rights has warned that an offence for incitement to terrorist violence must be carefully framed so as not to include legitimate criticisms in a democratic society.⁴¹ It is a matter of great concern that this formulation may be too imprecise to satisfy articles 9 and 14(1) and (2) of the ICCPR (ss.18, 21 and 22 of the ACT HR Act), and too overreaching to be proportionate to the objectives of the law. For example the new offence may catch a journalist’s article where it inadvertently triggers a terrorist act,⁴² and it has even been suggested that it may even cover private conversations at BBQs and dinner parties.⁴³ However, there would presumably be some defence under the constitutional doctrine of implied freedom of political communication.’⁴⁴ Embedded in these human rights is the basic common law principle of criminal law, that there must be no crime or punishment except in accordance with fixed and predetermined law. Jurisprudence under the ICCPR and under the European Convention on Human Rights have established that not only procedural requirements must be followed, but that the law itself be certain, that is ‘accessible and precise,’⁴⁵ for people to be able to regulate their conduct to avoid infringement.⁴⁶

Comparative jurisprudence in Canada, United States of America and South Africa interpreting domestic bills of rights reinforce this common law right in the context of express human rights principles. The European Court of Human Rights jurisprudence has established that a narrow meaning must be given to vague or ambiguous laws.⁴⁷ As referred to above, the ICJ has stated that persons suspected of involvement in terrorist acts should only be charged with crimes that are strictly defined by law, in conformity with the principle of legality. At the very least there will need to be a reading down on these provisions in order to satisfy the criterion of legal certainty.

The specific new offence of leaving baggage unattended at airports needs to contain safeguards in its formulation, such as mitigating factors like ‘reasonable excuse’. It is important to know if this proposal will be a strict liability offence.⁴⁸ It is difficult to ascertain what fault elements will be used in the criminal code, ranging from intention, knowledge, recklessness to negligence. Many cases may involve forgetfulness on the part of the accused, and there may be a disproportionate impact on vulnerable groups, such as persons suffering from mental illness or dementia.

The Australian government is not claiming to be at war or dealing with a public emergency that threatens the life of the nation. The President of the Human Rights and Equal Opportunity Commission, Mr von Doussa, QC, has challenged the Federal Government to clarify whether it is in fact using the derogation procedure.⁴⁹ These circumstances may justify derogation under article 4 of the International Covenant on Civil and Political Rights from certain fundamental civil rights, but not on discriminatory grounds (eg race and religion) nor in respect of non-derogable rights, such as protection from torture and freedom of religion.⁵⁰ This absence of derogation affects the degree of comparison between the proposed federal legislation and the anti-terrorism legislation in the UK on which it is modelled. According to the UK Joint Committee on Human Rights, it is the only country in the Council of Europe that has sought an explicit derogation from article 5 (right of liberty and security of the person) of the European Convention of Human Rights,⁵¹and the only country in the world to have derogated from the similar provision, Article 9, of the ICCPR.⁵²

Conclusion

The four counter terrorism proposals for the reasons set out above appear to be inconsistent with several provisions of the International Covenant on Civil and Political Rights, which also have been incorporated as principles of interpretation in the Human Rights Act 2004 (ACT). If laws in these proposed terms were enacted in the ACT, I would recommend extensive amendments to make them human rights compliant. The legitimate purpose of protecting the community from terrorism can be achieved without needing to rely on such wide-ranging discretions and powers in respect of terrorism.

Yours sincerely,

Dr Helen Watchirs

Human Rights and Discrimination Commissioner

19 September 2005

APPENDIX: Section 28 of the HR Act - the proportionality test

The question for these restrictions proposed under Territory law is whether the restrictions are justified under s.28 of the ACT HR Act, which provides: ‘Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society.’ Restrictions on rights should be narrowly construed, and the burden of establishing proportionality lies on the party that seeks to apply it, that is on the government: Smith and Grady v UK.⁵³ The main elements of the proportionality test are established by the Canadian case of R v Oakes.⁵⁴ The European Court of Human Rights, the UK courts and the New Zealand courts have also taken a similar approach: Sunday Times v UK;⁵⁵ Ministry of Transport v Noort;⁵⁶ and Ghaidan v Godin-Mendoza.⁵⁷

The s.28 test involves two closely related concepts. First to be ‘demonstrably justified in a democratic society’, there must be a legitimate objective, that is one of sufficient importance to justify overriding human rights. Secondly the measure must be proportional. There must be a rational connection between the public policy objective and the means that the state uses to pursue that objective: James v UK (1986).⁵⁸ The measure must strike a fair balance between the demands of the general interest of the community and the protection of the individual’s human rights. The measures must not go beyond what is necessary to achieve that objective. As a means of testing proportionality the court may enquire whether the government could have achieved the same objective by other means: Campbell v UK.⁵⁹ The particular objective of eliminating terrorism is a legitimate objective. However, it is not clear that the proposals are of sufficient importance to override rights, particularly when these aims could be achieved in a different way.

The Oakes case held that to be proportionate:

the limitation/s must be carefully designed to achieve the relevant objective, not be arbitrary, unfair, or based on irrational considerations;
the limitation or interference should impair as little as possible the right in question; and
even if the objective is of sufficient importance and the first two elements of the proportionality test are satisfied, it is still possible that because of the severity of the deleterious effects of a measure on individuals or groups the measure will not be justified by the purpose it is intended to serve’.

There is a rational connection between the objective of eliminating terrorism. However, it may not ‘carefully designed’ to achieve the relevant objective as the provisions could have severe and deleterious effects on a person’s right to liberty and a fair trial in relation to preventive detention, and freedom of movement and rights to privacy and family life in relation these extended police powers. Consequently there needs to be an analysis of whether there is some other reasonable way for the legislature to satisfy the objective that would not impair the right at issue, or that would have less impact on the right than does the law under review: Edwards Books and Art Ltd v R.⁶⁰

¹ Including the Security Legislation Amendment (Terrorism) Act 2002; ASIO Legislation Amendment (Terrorism) Act 2003; Criminal Code Amendment (Terrorist Organisations) Act 2004; Anti-terrorism Act 2004; Anti-terrorism Act (No.2) 2004; and Anti-terrorism Act (No.3) 2004.

² There is a balance between the benefits expected from them on one hand, and on the other hand their adverse consequences for the individual concerned, as well as the free exercise in the right that is being restricted. See Appendix on section 28 of the ACT Human Rights Act 2004.

³ UN Doc. E/CN.4/2002/18, Annex, 27 February 2002.

⁴ G. Barker, ‘Tough Anti-terrorism Powers Sought by PM’, Australian Financial Review 9 September 2005, S. Lewis and J. Kerin, “Wide Net for Tough Terror Laws’ The Australian, 9 September 20005 and. Munro and F. Shiel, ‘Howard’s Security Move “Draconian”’, The Age, 9 September 2005.

⁵ A v Australia, Human Rights Communication No. 560/1993, decision of 30 April 1997, UN Doc. CCPR/C/59/D/560/1993.

⁶ See the Council of Europe's Guidelines on Human Rights and the Fight Against Terrorism, adopted by the 45 Member States. The UK Joint Committee on Human Rights considered it the appropriate framework within which the debate about counter-terrorism measures should be conducted.

⁷ For example, hooding detainees, subjecting them to constant and intense ‘white’ noise, sleep deprivation, giving them insufficient food and drink, making detainees stand for long periods in pain: Ireland v UK (1979-80) 2 EHRR 25, para 82. The Public Committee Against Torture in Israel v The Government of Israel et al (HCJ 5100/94) decision of the Israeli Supreme Court sitting as the High Court of Justice of 6 September 1999.

⁸ Council of Europe, Guidelines on Human Rights and the Fight Against Terrorism, H (2002) 004.

⁹ International Commission of Jurists, The Berlin Declaration on Upholding Human Rights and the Rule of Law in Combating Terrorism, 28 August 2004.

¹⁰ ‘The Impact of Anti Terrorism Powers on the British Muslim population’ Liberty, June 2004; Hillyard, Suspect Community-People’s Experience of the Prevention of Terrorism Acts in Britain (1993). See also the Council for Racial Equality Submission to the Joint Committee on Human Rights, Review of Counter-terrorism Powers, 2003-4 HL 18^th Report, Appendix 1.

¹¹ H. Charlesworth, ‘Terrorism and the Law: Human Rights and Security – Conflict or Convergence’, paper delivered at the Judicial Conference of Australia, Maroochydore, 2 September 2005, J. Victoroff, ‘The Mind of the Terrorist’ 49 Journal of Conflict Resolution 3.

¹² B. Saul, ‘Speaking of Terror: Australia’s New Anti-terrorism Proposals’, forthcoming article in New Matilda 2005 online.

¹³ C. Hull, ‘The Fatal Flaws in Ruddock’s anti-terror plan’, Canberra Times, 13 September 2005.

¹⁴ Re Governor, Goulbourn Jail, Ex parte Eastman (1999) 200 CLR 322 and R v Bernasconi (1915) 19 CLR 629.

¹⁵ HRC, 155/83.

¹⁶ HRC, 330/88 and 560/93.

¹⁷ Winterwerp v Netherlands (1979) 2EHRR 387, para 66.

¹⁸ (1998) 11 EHRR 117. As a result of this case the UK entered a derogation to article 5(3), permitting 7 days of detention, but imposing a 5-year time limit on the derogation. The derogation was upheld by the European Court of Human Rights in Brannigan and McBride v UK (1993) 17 EHRR 539.

¹⁹ UN Human Rights Committee, General Comment No. 8, para 4.

²⁰ Chu Keong Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) per Brennan, Deane and Dawson JJ, 176 CLR 1 at p.28.

²¹ B. Brandon, ‘Terrorism, Human Rights and the Rule of Law: 120 years of the UK’s Legal Response to Terrorism’ (2004) Criminal Law Review 981.

²² Ibid.

²³ (2000) UN doc. A/55/40, paras 422-451, para 15.

²⁴ Coriel and Aurik v The Netherlands (453/91).

²⁵ Niemetz v Germany (1993) 16 EHRR 97.

²⁶ Human Rights Committee, General Comment 16.

²⁷ Camezind v Switzerland (1999) 28 EHRR 458.

²⁸ (1993) 16 EHRR 297.

²⁹ Hunter v Southam Inc [1984] 2 SCR 145.

³⁰ Derogating orders have a different procedure in the High Court, as it requires a derogation from article 5 (right to liberty) of the European Convention on Human Rights, and does not include rights to be informed of hearings or to have legal representation, and only lasts for 6 months.

³¹ A (FC) and Others v Secretary of State for the Home Department [2004] UKHL.

³² C. Walker, “Prisoners of “War All the Time”’ (2005) European Human Rights Law Review 50.

³³ UK Joint Committee on Human Rights, 18^th Report, Session 2003-04, para. 74.

³⁴ Liberty, Protecting Civil Liberties and Promoting Human Rights, Summary of the Prevention of Terrorism Act 2005 (2005).

³⁵ Guzzardi v Italy (1980) 3 EHRR 647 Engel v Netherlands (1976) 1 EHRR 647.

³⁶ Steel and Others v UK (1999) 28 EHRR 603.

³⁷ Lester and Pannick, Human Rights Law and Practice (1999) p.112 citing among others Weeks v UK (1987) 10 EHRR 293.

³⁸ B. McSherry, ‘Sex, Drugs and Evil Souls: is Preventive Detention Justifiable?’ speech given at Inaugural Waller Lecture, Melbourne, 18 August 2005.

³⁹ Council of Europe, Office of the Commissioner for Human Rights, Report by Mr Alvaro Gil-Robles, Commissioner for Human Rights, on his visit to the United Kingdom, 4-12 November 2004, 8 June 2005, pp10-12

⁴⁰ G. Williams, The Case for an Australian Bill of Rights (2004).

⁴¹ A. Gil-Robles, Opinion of the Commissioner for Human Rights on the Draft Convention on the Prevention of Terrorism, Council of Europe, 2 February 2005.

⁴² T. Allard, “Fear that Law Changes Will Curb Free Speech,’ The Sydney Morning Herald, 9 September 2005.

⁴³ C. Merritt, The Australian, 14 September 2005.

⁴⁴ Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 and Levy v Victoria (1997) 189 CLR 579.

⁴⁵ Sunday Times v UK (1979) 2 EHRR 245, para 49.

⁴⁶ Steel and others v UK (1999) 28 EHRR 603

⁴⁷ This comparative jurisprudence is fully discussed by Emmerson and Ashworth, Human Rights and Criminal Justice, 2003 pp 281- 288.

⁴⁸ In the European human rights case law strict liability offences must be ‘within reasonable limits’, that is proportional and rationally connected to the objective sought to be achieved: Salabiaku v France (1988) 13 EHRR 379.

⁴⁹ HREOC Press Release, ‘New Terrorism Laws Should Adhere to Human Rights Principles’ 13 September 2005.

⁵⁰ UN Human Rights Committee, General Comments Nos 28 and 24, paras 8 and 10 respectively.

⁵¹ The UK House of Lords has held that the derogation in the Anti- terrorism, Crime and Security Act 2001 was invalid under the ECHR and it is not clear whether the amending legislation, Prevention of Terrorism Act 2005 has overcome that problem: A v Sec of State for the Home Department [2004] UKHL 56.

⁵² UK Joint Committee on Human Rights, 18^th Report, Session 2003-04, para. 82

⁵³ (2000) 29 EHRR 493 at para. 73.

⁵⁴ [1986] 1 SCR103. A similar approach has been endorsed by the Privy Council in De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1998] 3 WLR 675.

⁵⁵ (1979-80) 2 EHRR 245.

⁵⁶ [1992] 3 NZLR 260.

⁵⁷ [2004] UKHL 30.

⁵⁸ 8 EHRR 123 at 50.

⁵⁹ (1993) 15 EHRR 394 at para 44.

⁶⁰ [1986] 2 SCR 713 at 772.