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Lasry, Lex; Eastman, Kate --- "Memorandum of Advice: Anti-Terrorism Bill 2005 (Cth) and the Human Rights Act 2004 (ACT)" [2005] UWSLawRw 6; (2005) 9(1) University of Western Sydney Law Review 111

MEMORANDUM OF ADVICE

Anti-Terrorism Bill 2005 (Cth) and the Human Rights Act (2004) ACT

Lex Lasry QC and Kate Eastman[*]

1.We are briefed by the ACT Government Solicitor who acts for the Acting Chief Executive of the Department of Justice and Community Safety. We are asked to advise on the following question:

If the Anti-Terrorism Bill 2005 (Cth) was ACT legislation, please advise whether the Attorney-General may present a statement under section 37(3) of the ACT Human Rights Act stating that the bill is consistent with human rights. If not, please advise how the bill is not consistent with human rights.

2.Our advice addresses the draft Anti-Terrorism Bill 2005 (Cth) identified as B05PG201.v.34.doc 14/10/2005 3.06pm. We note that this version of the Bill refers to ‘control orders’ in the title to Schedule 4 but the provisions dealing with control orders have been removed from an earlier version of the Bill, which was available on the website of the Chief Minister of the ACT. With respect to the control orders provisions, our advice is based on the draft Anti-Terrorism Bill 2005 (Cth) identified as B05PG201.v.28.doc 20/10/2005 10.31am.

3.We note that the Anti-Terrorism Bill 2005 amends various Commonwealth enactments including the Criminal Code Act 1995, Crimes (Foreign Incursions and Recruitment) Act 1978, Customs Act 1901, Customs Administration Act 1985, Financial Transaction Reports Act 1988, Australian Security Intelligence Organisation Act 1979, Administrative Decisions (Judicial Review) Act 1977, Migration Act 1958, Surveillance Devices Act 2004, Aviation Transport Security Act 2004 and Proceeds of Crime Act 2002 but we are asked to treat the various provisions of the Bill as if they were enacted as ACT Legislation.

4.A proposed amendment to section 100.1(1) of the Criminal Code will include a reference to a ‘corresponding State preventative detention law’ which means ‘a law of a State or Territory that is, or particular provisions of a law of State or Territory that are, declared by the regulations to correspond to Division 105 of this Act’. We have assumed that this provision together with regulations (which we have not been provided with) will be the means by which the ACT will enact laws concerned with preventative detention.

5.For the reasons outlined in this opinion, there are many aspects of the Anti-Terrorism Bill 2005 (Cth), which if enacted as ACT legislation would be inconsistent with the Human Rights Act 2004 (ACT) (‘the HR Act’). Accordingly, the Attorney-General could not present a statement under section 37(3) of the Act.

Anti-Terrorism Bill 2005

6.The Anti-Terrorism Bill will complement existing Commonwealth laws which address national security and terrorism. These Commonwealth laws[1] include:
the Anti-Terrorism Act 2004
the Anti-Terrorism Act (No. 2) 2004
the Anti-Terrorism Act (No. 3) 2004
the Australian Security Intelligence Organisation Act 1979
the Australian Security Intelligence Organisation Amendment Act 2004
the
Australian Security Intelligence Organisation Legislation Amendment Act 2003 the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003
the
Australian Federal Police and Other Legislation Amendment Act 2004the Australian Protective Service Amendment Act 2003
the Aviation Transport Security Act 2004
the Aviation Transport Security (Consequential Amendments and Transitional Provisions) Act 2004
the Border Security Legislation Amendment Act 2002
the Crimes Act 1914
the Crimes Amendment Act 2002
the Crimes (Overseas) Act 1964
the Criminal Code Amendment (Anti-Hoax and Other Measures) Act 2002
the Criminal Code Amendment (Espionage and Related Matters) Act 2002
the Criminal Code Amendment (Offences Against Australians) Act 2002
the Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002
the Criminal Code Amendment (Terrorism) Act 2003 (Constitutional Reference of Power)
the International Transfer of Prisoners Amendment Act 2004
the Maritime Transport and Offshore Facilities Security Act 2003
the National Security Information (Criminal and Civil Proceedings) Act 2004
the Security Legislation Amendment (Terrorism) Act 2002
the Suppression of the Financing of Terrorism Act 2002
the Telecommunications Interception Legislation Amendment Act 2002
the Telecommunications (Interception) Amendment Act 2004
the Telecommunications (Interception) Amendment (Stored Communications) Act 2004
the Surveillance Devices Act 2004
the Crimes Amendment Act 2005
the National Security Information Legislation Amendment Act 2005

These laws have been the subject of review and concern raised about the impact on human rights.[2]

7.The Anti-Terrorism Bill goes further than previous enactments by providing for control orders and preventative detention. The Bill will introduce the following changes:
(1)expanding the circumstances in which a person may commit an offence in relation to:
providing or receiving training connected with terrorist acts;
possessing things connected with terrorist acts;
collecting or making documents likely to facilitate terrorist acts;
other acts done in preparation for, or planning, terrorist acts;
activities of a terrorist organization;
financing terrorism

(2)a regime for imposing obligations and restrictions on persons for a period up to 12 months by way of a control order. The control order may restrict a person’s right do a range of activities which are taken for granted by most citizens. A control order will restrict the right to move freely in Australia or overseas, to associate with certain persons, attend certain places, to use the telephone or internet, and attend work. The orders will allow the person’s photograph or fingerprints to be taken and also require the person to attend for counselling or other specified education.

(3)a regime for preventative detention orders which allow for a person to be taken into custody and detained for the purpose of preventing an imminent terrorist act or preserve evidence of or relating to a recent terrorist act. The preventative detention regime will be in place for 10 years unless repealed before then.

(4)new offences and powers for the Australian Federal Police (AFP), special members of the AFP,[3] and State and Territory police officers in relation to stopping, questioning and searching persons, and seizing any item in relation to terrorist acts;

(5)new powers for obtaining information and documents;

(6)new offences of treason and sedition;

(7)new provisions in relation to surveillance at airports and on board aircraft; and

(8)new provisions in relation to reporting certain international funds transfers and questioning of persons leaving Australia in relation to the removal of certain funds.

8.The definition of a ‘terrorist act’ is critical to understanding the application of the proposed amendments. The phrase is defined by section 101 of the Criminal Code as follows:

terrorist act means an action or threat of action where:

(1) (a) the action falls within subsection (2) and does not fall within subsection (3); and

(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

(c) the action is done or the threat is made with the intention of:

(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

(ii) intimidating the public or a section of the public.

(2) Action falls within this subsection if it:

(a) causes serious harm that is physical harm to a person; or

(b) causes serious damage to property; or

(c) causes a person’s death; or

(d) endangers a person’s life, other than the life of the person taking the action; or

(e) creates a serious risk to the health or safety of the public or a section of the public; or

(f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:

(i) an information system; or

(ii) a telecommunications system; or

(iii) a financial system; or

(iv) a system used for the delivery of essential government services; or

(v) a system used for, or by, an essential public utility; or

(vi) a system used for, or by, a transport system.

(3) Action falls within this subsection if it:

(a) is advocacy, protest, dissent or industrial action; and

(b) is not intended:

(i) to cause serious harm that is physical harm to a person; or

(ii) to cause a person’s death; or

(iii) to endanger the life of a person, other than the person taking the action; or

(iv) to create a serious risk to the health or safety of the public or a section of the public.

(4) In this Division:

(a) a reference to any person or property is a reference to any person or property wherever situated, within or outside Australia; and

(b) a reference to the public includes a reference to the public of a country other than Australia.

9.An important feature of the legislation already in effect is the significant breadth of the important definitions including ‘terrorist act’ (referred to above) and ‘national security interests’ which in combination with the meanings of ‘international relations’ and ‘law enforcement interests’ have very broad application.

Human Rights Act 2004

10.The object of the HR Act, which came into force on 1 July 2004, is to give recognition to basic human rights and freedoms in the ACT. As the Attorney-General noted in his Presentation Speech:[4]

It is the clear and unequivocal commitment by this Government and this community about those values that bind us together as a democratic, multi cultural and rights respecting people. By passing this Bill we commit ourselves to minimum standards in our law making – it is a bottom line, a floor below which we should not fall.

He went on to say:

Some are nervous about the impact of this law. Let me say this. Rights exist in social contexts, this is world recognised in International Human Rights law but is too frequently lost in debate which exaggerates the scope and impact of rights. Some human rights are absolute – the right not to be tortured is one such right. I am sure that no-one in this Assembly would disagree with that proposition. But the Covenant does not permit the use of human rights as a pretext to violate the rights of other. We have taken care to reflect this principle in our Bill and to ensure that restrictions on rights do not go further than is necessary.

11.The Preamble to the HR Act sets out the object and purpose of the Act. This includes recognition that human rights are necessary for individuals to live lives of dignity and value. Further it recognises that respecting, protecting and promoting the rights of individuals improves the welfare of the whole community. The Preamble also states that few rights are absolute and that human rights may be subject only to the reasonable limits in law that can be demonstrably justified in a free and democratic society. One individual's rights may also need to be weighed against another individual's rights.

Human rights as defined by the HR Act

12.It is clear that the HR Act draws on a range of international human rights. Section 5 defines ‘human rights’ as the civil and political rights in Part 3. However, section 7 provides that these rights are not exhaustive.
13.Part 3 sets out the civil and political rights protected by the HR Act. These provisions draw on the International Covenant on Civil and Political Rights (‘ICCPR’) as their source.
14.In this opinion, we refer to the particular provisions of Part 3 of the HR Act as they may apply to the operation of a provision in the Anti-Terrorism Bill.
15.Part 4 of the HR Act deals with the application of the human rights. Section 30 provides that ‘in working out the meaning’ of a Territory law, an interpretation that is consistent with human rights is to be preferred to any other interpretation. Section 31 addresses interpreting human rights. An ACT Court may have regard to international law, which includes the ICCPR, other human rights treaties to which Australia is a party and other relevant UN standards. An ACT Court may also consider the judgments of foreign and international courts and tribunals.
16.We have referred where relevant to other international instruments to which Australia is a party and also the decisions of other international tribunals, such as the United Nations Human Rights Committee and the European Court of Human Rights.

Section 28 of the HR Act

17.We note that it is not enough to point to an inconsistency with a human right in Part 3 of the HR Act. In all cases, consideration must be given to section 28 of the HR Act, which allows for all the human rights in Part 3 to be limited. Section 28 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.

18.Very few human rights are absolute in the sense that any limitation or restriction on the human right is not permissible.[5] Limitations may be necessary to accommodate the competing rights between individuals or to ensure that the broader community is protected. As article 5(1) of the ICCPR notes:

Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.

19.In R v Director of Public Prosecutions; ex parte Kebilene [1999] 3 WLR 175 at [34],[6] Lord Bingham made the following observations about the Human Rights Act 1998 (UK), which is based on the European Convention of Human Rights:

Any human rights instrument must represent a compromise between the rights of the individual and the rights of other individuals who collectively make up the community, society or state. But a human rights instrument such as the Convention is a measure to protect human rights and fundamental freedoms....

20.Where the balancing act is required, care must be taken to strike the right balance. First, if rights are limited or restricted, the Parliament must ensure that the language imposing the restriction is clear, unmistakable and unambiguous. As Chief Justice Gleeson stated in Plaintiff S157/2002 v Commonwealth (2003) 77 ALJR 454 at 462 [30]:

[C]ourts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. As Lord Hoffmann recently pointed out in the United Kingdom, for Parliament squarely to confront such an issue may involve a political cost, but in the absence of express language or necessary implication, even the most general words are taken to be 'subject to the basic rights of the individual'.

21.Secondly, if rights are to be limited, then any limitation should be for a particular purpose and the measures taken to restrict the rights should be proportionate. The concept of proportionality, as the means of accepting how and when human rights may be limited, is a well-accepted principle in international law and comparable domestic legal systems.[7]
22.Thirdly, the onus rests on the party who seek to justify any limit on human rights.
23.Section 28 incorporates the principle of proportionality and recognises that the human rights in the HR Act may be limited in certain circumstances. We note that section 28 follows the approach identified by the United Nations Human Rights Committee in the General Comment No. 27 at [15] and should be construed consistently with the United Nations Human Rights Committee’s guidelines.
24.We consider the application of section 28 of the HR Act to be critical in determining whether the various provisions of the Anti-Terrorism Bill could operate in a manner which is consistent with the human rights which the HR Act seeks to protect.
25.If a human right is to be limited, then the following questions must be asked and answered:
(1)What is the extent of the restriction or limitation on the right in question?
(2)What is the purpose for restricting or limiting the right and does it serve an important and significant objective?
(3)Is it strictly necessary to restrict or limit the right?
(4)Is there any alternative means of achieving the purpose which is less restrictive?
(5)Are there safeguards in place to ensure that any limitation on the right will operate only to serve its purpose and not otherwise impair a person’s enjoyment of their human rights.
26.We accept that applying section 28 involves weighing:
the significance in the particular case, of the objects and values protected by the HR Act;

the importance in the public interest of the intrusion on the particular right;

the limits sought to be placed on the application of the particular right in the particular case;

whether alternative less intrusive measures may achieve the same desired results; and

the effectiveness of the intrusion in protecting the interests put forward to justify those limits.
27.In the context of terrorism, we note that the United Nations and recent developments in international law impose a clear duty on States to protect their citizens against terrorism and counter-terrorist measures: see Appendix A for the relevant international instruments and resolutions of the United Nations.[8] However, all measures directed at protecting their citizens against terrorism and counter-terrorist measures ‘must be in conformity with international human rights, humanitarian and refugee law’.[9] This is a consistent and pervasive theme in all international developments addressing terrorism.[10]
28.The importance of taking human rights into account in the application of measures designed to address terrorism have also been recognised in domestic legal systems: see for example Secretary of State for the Home Department v Rehman [2003] 1 AC 153, 192-193, paras 50-54. In A (FC) and others (FC) (Appellants) v Secretary of State for the Home Department (Respondent) [2004] UKHL 56 which was concerned with the Human Rights Act 1998 (Designated Derogation) Order 2001, Anti-terrorism, Crime and Security Act 2001 and Terrorism Act 2000 (UK). At para 30, Lord Bingham made the following observation about the derogation of rights and the balance to be struck:

[30] Article 15 requires that any measures taken by a member state in derogation of its obligations under the Convention should not go beyond what is ‘strictly required by the exigencies of the situation.’ Thus the Convention imposes a test of strict necessity or, in Convention terminology, proportionality. The appellants founded on the principle adopted by the Privy Council in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1998] UKPC 30; [1999] 1 AC 69, 80. In determining whether a limitation is arbitrary or excessive, the court must ask itself:

‘whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.’

This approach is close to that laid down by the Supreme Court of Canada in R v Oakes [1986] 1 SCR 103, paras 69-70, and in Libman v Attorney General of Quebec (1997) 3 BHRC 269, para 38. To some extent these questions are, or may be, interrelated. But the appellants directed the main thrust of their argument to the second and third questions. They submitted that even if it were accepted that the legislative objective of protecting the British people against the risk of catastrophic Al-Qaeda terrorism was sufficiently important to justify limiting the fundamental right to personal freedom of those facing no criminal accusation, the 2001 Act was not designed to meet that objective and was not rationally connected to it. Furthermore, the legislative objective could have been achieved by means which did not, or did not so severely, restrict the fundamental right to personal freedom.

29.Unlike the United Kingdom, Australia does not have a national bill of rights, nor is it subject to a court exercising the jurisdiction of the kind provided by the European Court of Human Rights.

New offences in the Criminal Code – Schedule 1 of the Bill

30.Clause 106.3 of the Criminal Code will be added. It provides that the new offences which are provided by items 2, 3, 4, 5 and 22 of Schedule 1 (which make certain conduct an offence even if a terrorist act does not occur) apply to offences committed whether before or after the commencement of the section. They are intended to operate retrospectively and no justification for why this is necessary is apparent from the terms of clause 106.3.[11]
31.Clause 106.3 is inconsistent with section 25(1) of the HR Act which provides:

No-one may be held guilty of a criminal offence because of conduct that was not a criminal offence under Territory law when it was engaged in.

32.We note that other new offences will not operate retrospectively. For example, an offence created by clause 103.2 in Schedule 3 in relation to financing a terrorist is not expressed to be retrospective in its operation. This provision would be consistent with section 25(1) of the HR Act.

Control orders – Division 104 of the Criminal Code – Schedule 4 of the Bill

33.The Bill provides for control orders. The purpose of a control order is to ‘protect the public from a terrorist act’ (clause 104.1A). The Division addresses urgent control orders and control orders.
34.A control order will impose obligations, prohibitions and restrictions on a person (clause 104.4(3)) with respect to one or more of the following activities for a period up to 12 months (or 3 months for a person aged between 16 and 18 years of age):

(a) a prohibition or restriction on the person being at specified areas or places;

(b)a prohibition or restriction on the person leaving Australia;
(c)a requirement that the person remain at specified premises between specified times each day, or on specified days;
(d)a requirement that the person wear a tracking device;
(e)a prohibition or restriction on the person communicating or associating with specified individuals;
(f)a prohibition or restriction on the person accessing or using specified forms of telecommunication or other technology (including the Internet);
(g)a prohibition or restriction on the person possessing or using specified articles or substances;
(h)a prohibition or restriction on the person carrying out specified activities (including in respect of his or her work or occupation);
(i)a requirement that the person report to specified persons at specified times and places;
(j)a requirement that the person allow himself or herself to be photographed;
(k)a requirement that the person allow his or her fingerprints to be taken;
(l)if the person consents—a requirement that the person participate in specified counselling or education.
35.Successive orders may be made in relation to the same person (clause 104.4(2)). However, it is not clear whether a successive order must be in the same terms or whether new restrictions and obligations may be imposed on the person who is subject to the order.
36.It will be an offence punishable with up to 5 years imprisonment to contravene a control order (clause 104.13).
37.The very nature of a control order and the circumstances in which they may be made is inconsistent with the following rights in the HR Act:
freedom of movement: section 13
arbitrary detention: section 18(1)
privacy: section 12(a)
freedom of expression: section 16(2)
freedom of assembly and association: section 15(1) and (2)
freedom to take part in public life is restrictions were of the nature that impaired the right contact elected representatives: section 17(a)
rights of minorities: section 27
freedom of religion if restriction were placed on attending a place of worship: section 14(1)
fair trial and access to lawyers: section 21(1)
38.The Bill does not disclose any rational nexus between the object of the control orders and the extent of the restriction on a person’s activities for 12 months or longer. There is no clear nexus between the objective of protecting the public from a terrorist act and the complete removal of the right of a person to engage in the types activities which Australia’s citizens take for granted.
39.Further, when a person is subject to a control order, the restrictions may also impact upon the rights of that person’s associates and third persons. For example, if the person subject to a control order must wear a tracking device, then third persons may also have their privacy infringed as their movements and whereabouts may also be the subject of covert surveillance. There is no opportunity for third parties whose rights are affected to access an effective remedy.[12]
40.We do not think the type of restrictions, which may be imposed on a person’s daily activities, could be justified as reasonably necessary for the purpose of section 28 of the HR Act.
41.Further, there are insufficient safeguards in Division 104 if control orders were to operate to impose a range of restrictions on a person’s daily activities. The only apparent safeguards are:
the requirement for the Attorney-General’s consent to seek an application;
that a control order is made by a Court;
that the Court must be satisfied that each of the restrictions to be imposed is reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act; and
specific rights for a person subject to a control order.
42.We do not consider that the requirement to obtain the Attorney-General’s consent before an AFP officer may apply for a control order provides any measure of protection. Clause 104.1 does not indicate what factors the Attorney-General may take into account in determining whether consent will be granted or withheld.
43.Further, if the AFP makes an application for an urgent control order, the application may be made without the Attorney-General’s prior consent (clause. 104.5(2). The Court may make the order in such circumstances, but curiously, if the Attorney-General’s consent is later sought and the consent is either refused or not obtained, it appears that the order ceases to be in force (clause 104.7). This raises an interesting issue about the interaction between the Court and the Attorney-General who may refuse or fail to give consent which then has the effect of the order ceasing.
44.Clause 104.3 sets out when the Court may make such an order. The Court must be satisfied on the balance of probabilities that the order should be made. We would hope that given the seriousness of the consequence, that standard would be applied in the manner referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361. However, as the High Court later explained in Neat Holdings v. Karajan Holdings [1992] HCA 66; (1992) 110 ALR 449, whilst in particular cases a finding on the balance of probabilities should not be made lightly, the meaning of the standard remains – there is no intervening standard between the balance of probabilities and beyond reasonable doubt.
45.Since there is no provision to the contrary, it appears that the orders would be sought ex parte and without the person who is the subject of the application being able to contest the factual or legal basis on which the application is made. This procedure is antithetical to the right to a fair trial as provided by section 21(1) of the HR Act (see cf paragraph 94 ff below).
46.The only occasion on which the person who is subject to the order may appear and be heard is where the Commissioner of the AFP applies to have a control order varied to add further obligations or restrictions. In these circumstances, a person or representative may adduce material to the Court in relation to the application to vary the order (clause 104.12D(4))
47.Clause 104.3(1)(c) and (2) require the Court to be satisfied that each of the restrictions which may be made under clause 104.4(3) and included in an order is ‘reasonably necessary’ and ‘reasonably appropriate and adapted’ for the purpose of protecting the public from a terrorist act. There is no explicit requirement to make this assessment by reference to human rights standards. We think at the very least there should be an express reference to the ICCPR which is a schedule to the Human Rights and Equal Opportunity Commission Act 1986 (Cth).
48.The circumstances in which the Court may be asked to determine these issues is unclear. How is a Court to determine what measures will protect the public? Will the Court have to determine whether the terrorist act is imminent or likely? Will the Court be asked to make an order ‘just in case’ there may be a terrorist act at some stage in the future? How is the Court to determine whether the order should be for 1 day or 12 months? How will the Court determine whether successive orders should be made?
49.The assessment may involve a Court considering a range of policy considerations. It is difficult to anticipate the type of evidence that a Court would require in order to be satisfied that the public requires protection from a terrorist act and that the proposed restrictions on a person’s liberty will achieve the level of protection desired. This aspect of the Bill may also raise issues with respect to the proper exercise of judicial power within the meaning of Chapter III of the Constitution, which we understand is the subject of separate advice.
50.In practice, it will be difficult for the Court to make a full and proper assessment unless the person who is to be affected by the order had the opportunity to be heard. There is no rational justification to exclude the person who will be subject to the control order from any hearing to determine whether the order should be made.
51.Subdivision D provides for ‘rights in respect of a control order’. We note that there appears to be no clauses 104.9, or 104.10 in the current draft.
52.In summary, the person who is the subject of a control order has the following rights:
Personal service of the order and a summary of the grounds upon which the order are to be made, as soon as practicable (clause 104.8A);
The person’s lawyer may attend a specified place to obtain a copy of the order if so ordered by the Court, but the lawyer may not have access to any other document (clause 104.8B)
Apply to have the order revoked, varied or declared void (clause 104.11 and 104.12A) at any time after the order has been served. That requires the applicant to provide written notice to the Commissioner of the Australian Federal Police of the application and the grounds on which it is made. The efficacy of this process will depend on how informative the ‘summary of the grounds on which the order is made’ referred to in Clause 104.8A actually are. It is easily conceivable that the AFP member and the issuing authority will be aware of information on which they will act but which will not appear in such a summary;
Restrictions on the use of photographs or fingerprints (clause 104.12C)
53.These rights are inadequate and do not provide any effective safeguards once the order has been made.
54.The person concerned should be provided with complete written reasons of the decision to make a control order, not just a summary. He or she should also be advised of any rights to appeal and what assistance may be made to appeal the order or seek its revocation.
55.The restriction on providing all relevant documents to the person’s lawyer would make it difficult for any person to understand why an order may have been made and be able to respond to any adverse allegation. There is no justification for refusing the lawyer or person access to all documents provided to the Court on the AFP’s application for a control order.
56.For the reasons outlined, we think that Division 104 is not compatible with the HR Act.

Preventative Detention – Division 105 of the Criminal Code – Schedule 5

57.There are three types of orders which may be made under this Division, with respect to persons over the age of 16 years. They are:
initial preventative detention order (clause 105.8)
continued preventative detention order (clause 105.12)
prohibited contact order (clauses 105.15 and 105.16)
58.These orders are made on the written application of a member of the AFP or special member of the AFP (clause 105.4(1)). While not expressly provided for in the Bill, it is clear that all applications are made and determined on an ex parte basis and in camera.
59.To the extent that the Anti-Terrorism Bill provides for persons to be detained and procedures for doing so, the Bill is consistent with section 18(2) of the HR Act which provides:

(2) No-one may be deprived of liberty, except on the grounds and in accordance with the procedures established by law.

60.However, as a general comment, the very nature of a preventative detention order is prima facie inconsistent with section 18(1) of the HR Act which provides:

(1) Everyone has the right to liberty and security of person. In particular, no-one may be arbitrarily arrested or detained.

61.Section 18(1) and (2) reflect article 9(1) of the ICCPR:

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

62.The nature of the right is also recognised in the common law. Deane J. made the position clear in Re Bolton: ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 528, where he said:

The common law of Australia knows no lettre de cachet or executive warrant pursuant to which either citizen or alien can be deprived of his freedom by mere administrative decision or action. Any officer of the Commonwealth Executive who, without judicial warrant, purports to authorize or enforce the detention in custody of another person is acting lawfully only to the extent that his conduct is justified by clear statutory mandate. That being so, it is the plain duty of any such officer to satisfy himself that he is acting with the authority of the law in any case where, in the name of the Commonwealth, he directs that a person be taken and held in custody. The lawfulness of any such administrative direction, or of actions taken pursuant to it, may be challenged in the courts by the person affected: by application for a writ of habeas corpus where it is available or by reliance upon the constitutionally entrenched right to seek in this Court an injunction against an officer of the Commonwealth. It cannot be too strongly stressed that these basic matters are not the stuff of empty rhetoric. They are the very fabric of the freedom under the law which is the prima facie right of every citizen and alien in this land. They represent a bulwark against tyranny. They provide the general context of the present case. Emphasis added

63.In A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) [2004] UKHL 56 at para 74, Lord Nicholls stated the proposition thus:

Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law. It deprives the detained person of the protection a criminal trial is intended to afford. Wholly exceptional circumstances must exist before this extreme step can be justified.

64.Preventative detention orders could only be a justifiable restriction of this important human right in exceptional circumstances and even then provided that the orders were not arbitrary and were proportionate to the ends sought be achieved.
65.In international law, ‘arbitrary’ involves actions which are unjust, unpredictable, unreasonable, capricious and not proportional.[13] There must be clear and compelling evidence that detention is necessary in all the circumstances. We also consider the existence of appropriate safeguards and review mechanism critical to the issue of whether preventative detention is arbitrary.
66.For the reasons outlined below the particular provisions in Division 105 and the cumulative effect of the provisions are not proportional to the ends sought to be achieved.

Initial preventative detention orders

67.An initial preventative detention order (‘initial order’) may be made by a Senior APF officer – that is the Commissioner, Deputy Commissioner or AFP member at the rank of Superintendent (cl. 105.8(1)). In theory, the Commissioner could be the applicant for the order and also make the order. That is because under the amendments proposed to the Criminal Code, ‘issuing authority’ for initial preventative detention orders means ‘..a senior AFP member’ which in turn means Commissioner, Deputy Commissioner or member above the rank of Superintendent. In turn, the Bill does not provide that such an order must be granted by an AFP officer who is not the applicant.
68.The order may be made (clause 105.4(2) if the AFP member is satisfied that:

(a) there are reasonable grounds to suspect that the subject:

(i) will engage in a terrorist act; or

(ii) possesses a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act; or

(iii) has done an act in preparation for, or planning, a terrorist act; and

(b) making the order would substantially assist in preventing a terrorist act occurring; and

(c) detaining the subject for the period for which the person is to be detained under the order is reasonably necessary for the purpose referred to in paragraph (b).

69.Clause 105.4(3) – (5) further qualify the circumstances in which an order may be made, as follows:

(3) A terrorist act referred to in subsection (2):

(a) must be one that is imminent; and

(b) must be one that is expected to occur, in any event, at some time in the next 14 days.

(4) This subsection applies if the AFP member or the issuing authority, as the case may be, is satisfied that:

(a) a terrorist act has occurred within the last 28 days; and

(b) it is necessary to detain the subject to preserve evidence of, or relating to, the terrorist act; and

(c) detaining the subject for the period for which the person is to be detained under the order is reasonably necessary for the purpose referred to in paragraph (b).

(5) An issuing authority may refuse to make a preventative detention order unless the AFP member applying for the order gives the issuing authority any further information that the issuing authority requests concerning the grounds on which the order is sought.

70.The grounds upon which an order may be made is vague if one considers the type of evidence that the AFP would require in relation to making the initial order.
71.There is, of course, no standard of proof (such as the balance of probabilities) to be met for an order to be made. In accordance with the law in relation to the issue of search warrants, for example, in considering the issue of ‘reasonable grounds’, the test will be a subjective one and all the ‘issuing authority’ will be required to be satisfied of is that there are reasonable grounds for the suspicion – it will not be necessary that the ‘issuing authority’ also entertain the relevant suspicion.[14]
72.There is no indication in the proposed Bill as to what reasonable grounds would be required to suspect that a person will engage in a terrorist act or possess a thing that is connected with the preparation for or the engagement of a person in a terrorist act.
73.In relation to a terrorist act that has occurred the scope of clause 105.4(4) is even broader. There is nothing that necessarily connects the person to be detained with the commission of a terrorist act. All that has to be demonstrated is that it is necessary to detain the person to preserve evidence relating to the terrorist act regardless of whether or not that person was involved in the terrorist act that has occurred.
74.We do not think that it is appropriate to apply the same tests for circumstances where a terrorist threat is imminent, and the detention of the person may be necessary to curtail the threat, with the circumstances in which a person may be detained after a terrorist attack and solely for the purpose of preserving ‘evidence’. Detention for the purpose of preserving evidence should only occur in the most exceptional cases. It is not apparent from the Bill why such a provision is necessary in light of the range of powers which would ordinarily be available to the AFP to preserve evidence.
75.We note that the European Court of Human Rights has recently affirmed the importance of reliable information to justify detaining a person. In Gusinskiy v. Russia (determined 19 May 2004) the Court noted:

[53] The Court reiterates that in order for an arrest on reasonable suspicion to be justified under Article 5 § 1 (c) it is not necessary for the police to have obtained sufficient evidence to bring charges, either at the point of arrest or while the applicant is in custody (see Brogan and Others v. the United Kingdom, judgment of 29 November 1988, Series A no. 145-B, pp. 29-30, § 53). Neither is it necessary that the person detained should ultimately have been charged or taken before a court. The object of detention for questioning is to further a criminal investigation by confirming or discontinuing suspicions which provide the grounds for detention (see Murray v. the United Kingdom, judgment of 28 October 1994, Series A no. 300-A, p. 27, § 55). However, the requirement that the suspicion must be based on reasonable grounds forms an essential part of the safeguard against arbitrary arrest and detention. The fact that a suspicion is held in good faith is insufficient. The words ‘reasonable suspicion’ mean the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence (see Fox, Campbell and Hartley v. the United Kingdom, judgment of 30 August 1990, Series A no. 182, pp. 16-17, § 32).

76.The order has a 48 hour life and only one initial order may be made.
77.The initial order is made before a person is taken into custody or detained. The order permits a person to be detained for no longer than 24 hours (clause 105.8(5)). The order must specify the name of the person, the duration of any detention and the date and time after which the person may not be taken into custody.
78.If a person is detained under such an order, he or she has various rights (discussed below) in relation to contacting one family member, and interpreter if necessary and a lawyer. The person may also make a complaint to the Ombudsman and seek a remedy in relation to the order in a federal court.
79.The person is also provided with the order.
80.The person is also to be treated humanely whilst in detention.
81.The initial order may only be revoked by the issuing authority and then only on application by the AFP member (clause 105.17). The individual detained cannot apply to have the order revoked. There is no requirement for the AFP to act expeditiously to seek to revoke the order if the circumstances have changed.
82.At this point, notwithstanding our concern that the order is made by an AFP officer on application of an AFP officer, rather than an independent judicial officer, and that it may apply to persons under the age of 18, the limited duration and the circumstances of an initial order may be justified for the purpose of section 28 of the HR Act because the period of detention is finite and clear.
83.We think that further safeguards could be included in relation to protecting the rights of a person subject to an initial order. These safeguards could include:
requiring the application to be made on affidavit;
any order being given to the person detained immediately together with a clear written statement of the person’s rights whilst in detention with respect to contacting a family member, lawyer or the Ombudsman, as well as his or her right to seek a remedy from a court;
clearer provisions setting out the circumstances in which orders may be made and the reasons why an order may be refused, particularly where the order may be for a person under the age of 16 years; and
the AFP officer issuing the order should be required to make written reasons for the order at the time the order is made.

Extended initial orders

84.The Bill is not limited to a once-off maximum 24-hour period of preventative detention. The remaining features of the Bill which permit extended and indefinite detention cannot be justified under section 28 of the HR Act.
85.The safeguards which may be appropriate for a person detained to up 24 hours are not safeguards which are adequate or appropriately adapted for persons who are detained under an extended initial order or a continued order.
86.Extensions of an initial order may be made (clause 105.10) for a further 24 hours. All the AFP officer must do is give reasons why an extension is necessary, so the issuing officer is not required to address all the circumstances listed in clause 105.4 on an extension application.
87.There is no limit on the number of applications for extension (clause 105.10). The absence of any provision limiting the number of times that the initial order may be extended, particularly when the orders are made by a member of the AFP to the Commissioner or Deputy Commissioner, without judicial oversight, exposes the legislation to abuse.
88.Any order to detain a person should be made by a judicial officer. It is not apparent from the Bill why an initial order should be extended, (even less so an unlimited number of times), when there is provision for a continued detention order to be made by a judicial officer, albeit acting in a personal capacity.

Continued preventative detention order

89.A continued preventative detention order (‘continued order’) may be made by a Federal Magistrate or a Judge appointed by the Minister (clause 105.12).
90.The Federal Magistrate or judge will act in a personal capacity and not as a court or member of the court, but will have the same protection and immunity as a Justice of the High Court (clause 105.18). This provision suggests a chameleon quality of the capacity in which the judge would be operating. It would appear to us that the purpose of stipulating that a judge is acting in a personal capacity is to avoid the requirements of Chapter III of the Constitution. We are not asked to advise on this aspect although we understand that other advice has been given in relation to this issue.
91.An application for a continued order will be made when the person is subject to an initial order. The person may have been taken into custody but at the time of the making of the order may not be detained (clause 105.12). This distinction is not clear but for the purpose of section 18(1), the person will be treated as being detained.
92.The provisions of the Bill do not require the AFP to act expeditiously to obtain a continued order where an initial order is in place. In practice, it is likely that the AFP will wait for an existing order to expire before seeking a continued order or an extension to the order.
93.An application must be in writing and the information to support the order must be provided by way of an affidavit (clause 105.11(4). The requirement that the information supporting the application be sworn is an appropriate measure.
94.The detained person has no right of appearance or right to be heard on an application for a continued order or any application for an extension of the order. This is inconsistent with the fair trial provisions in section 21 of the HR Act which provides:

(1) Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

(2) However, the press and public may be excluded from all or part of a trial—

(a) to protect morals, public order or national security in a democratic society; or

(b) if the interest of the private lives of the parties require the exclusion; or

(c) if, and to the extent that, the exclusion is strictly necessary, in special circumstances of the case, because publicity would otherwise prejudice the interests of justice.

(3) But each judgment in a criminal or civil proceeding must be made public unless the interest of a child requires that the judgment not be made public.

95.Schedule 1, item 21 of the HR Act notes that article 14 of the ICCPR is the source of the right. The right to a fair trial is well recognised.[15] Article 14(1) in turn has been considered by the Human Rights Committee (established under article 28 of the ICCPR). In a General Comment published by the Committee on article 14, the Committee noted that the right to a fair trial is ‘aimed at ensuring the proper administration of justice, [by upholding, inter alia], the right to a fair and public hearing’.[16]
96.The right to a fair trial is concerned with many aspects of the trial process for both civil and criminal matters. We think the right applies to determination of preventative detention orders because, inter alia, the very concept of a fair trial process is concerned with protecting the citizen from the extensive powers of the state particularly where the exercise of those powers will result in the deprivation of an individual’s liberty.
97.As far as the substantive right to a fair trial is concerned, the right has been given a broad and purposive interpretation. The right to a fair trial requires ‘equality of arms’.[17]
98.The main factor when considering ‘fairness’ is whether a respondent's rights are sufficiently safeguarded vis-a-vis the complainant’s rights. Both parties must be afforded a reasonable opportunity to present his or her case, including the presentation of evidence, under conditions that do not put either party at a substantial disadvantage.
99.It is also accepted that the requirement for a fair trial must be assessed in the context of the hearing as a whole. Generally a fair trial will have the following elements:
notice of the proceedings;
quick and effective access to a court; and
the opportunity for the litigant to present his or her case.
100.Clause 105.12 is inconsistent with section 21 of the HR Act because not only is there an absence of any trial in relation to the determination of a continued order or an extension of the order, the orders are not made or determined in public and continue to be made on an ex parte basis.
101.If a Federal Magistrate or Judge is asked to make or extend a continued order, the detained person has no right to challenge the legality of the order at that stage. While he or she has rights in seeking a remedy from a court (see below), it would be appropriate to provide the person with an opportunity at this point to challenge the order consistently with section 18(6) of the HR Act which provides:

(6) Anyone who is deprived of liberty by arrest or detention 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.

102.There is no requirement for the Federal Magistrate or Judge to provide reasons for making the continued order or extending the order. The only information required is that set out in clause 105.12(6), which is of a very limited nature and almost administrative in its operation. There appears to be no requirement for the issuing authority to test the evidence or call for further or additional material.
103.While a continued order may be for a maximum 48 hour duration, it appears that the continued order may be extended, but again the extensions may be indefinite.
104.The Bill does not provide any limits on the number of times a continued order may be extended (see clause 105.14).

Prohibited contact order

105.Prohibited contact orders may also be made when the person is the subject of a detention order. This prevents the detainee contacting any person named in the order. It appears any person may be included in a prohibited contact order, including the person’s family members and lawyers (clause 105.34(2)(a)).
106.The detained person is not told that the order has been made (clause 105.28(5)). There is no apparent justification for keeping the order secret and we think that it would be sensible for the person to be told such an order has been made and that he or she understands that the order will prevent them from attempting to contact the person/s listed.
107.The circumstances in which these orders may be made is vague. There are no criteria, no objective grounds, no challenge and no limit on the number of persons who could be included in the order.
108.In our view the very making of a prohibited contact order is inconsistent with the right to freedom of expression which is provided for by section 16(2) of the HR Act which provides:

(2) Everyone has the right to freedom of expression. This right includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of borders, whether orally, in writing or in print, by way of art, or in another way chosen by him or her.

109.The Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977 is widely accepted as appropriate standards for the treatment of detainees. The Standard Rules provide:

37. Prisoners shall be allowed under necessary supervision to communicate with their family and reputable friends at regular intervals, both by correspondence and by receiving visits.

38. (1) Prisoners who are foreign nationals shall be allowed reasonable facilities to communicate with the diplomatic and consular representatives of the State to which they belong.

(2) Prisoners who are nationals of States without diplomatic or consular representation in the country and refugees or stateless persons shall be allowed similar facilities to communicate with the diplomatic representative of the State which takes charge of their interests or any national or international authority whose task it is to protect such persons.

39. Prisoners shall be kept informed regularly of the more important items of news by the reading of newspapers, periodicals or special institutional publications, by hearing wireless transmissions, by lectures or by any similar means as authorized or controlled by the administration.

110.We do not see any basis to depart from these widely accepted rules in relation to the treatment of persons who are subject to a preventative detention order.
111.There is nothing in the Bill which indicates why such a restrictive order is necessary and we do not consider that it could be justified within the terms of section 28 of the HR Act.

Use of force

112.Clause 105.23 refers to the use of force by an AFP member in the course of taking a person into custody or detaining them under a preventative detention order. The provision is in negative terms – i.e. it requires an AFP member not to use more force than is necessary and reasonable. Clause 105.23(2) provides that in the course of taking a person into custody or detaining a person an AFP member must not do anything that is likely to cause the death of, or grievous bodily harm to, the person unless ‘...the AFP member believes on reasonable grounds that doing that thing is necessary to protect life or prevent serious injury to another person (including the AFP member)...’ The clause goes on to make similar provision in relation to a person attempting to escape.
113.It does appear to us that this provision seeks to capture the common law in relation to self defence in homicide cases. In Zecevic v Director of Public Prosecutions [1987] HCA 26; (1987) 162 CLR 645, in the judgment of Wilson, Dawson and Toohey JJ, the following appears (at page 661):

‘The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. Stated in that form, the question is one of general application and is not limited to cases of homicide. Where homicide is involved some elaboration may be necessary.’

114.Whilst is not clear why this provision was necessary to be included in the Bill, we do not understand it to be providing some special licence to AFP members to use lethal force beyond what is available to every citizen. Police who kill in the course of arresting a suspect, are entitled to use force where such force is necessary to defend themselves or others. If that circumstance does not prevail then they are open to be charged with murder.

Searches of persons and premises

115.We note that the person and premises may be searched (see clause 105.23, 105.24 and 105.25). These search provisions are broad in their scope and application and it is our view that the provisions on their face are inconsistent with the right to privacy which is protected by section 12(a) of the HR Act.
116.In some circumstances it will be necessary for AFP officers to enter premises and conduct searches. These provisions are ancillary to a preventative detention order and in the circumstances of executing an initial order which has a 48 hour life, it may be necessary for the AFP to use such powers. We consider that there are appropriate safeguards in relation to when and how such powers may be executed.[18]

Rights of the person detained

117.It is a matter of concern that if a person is taken into custody and detained there is no obligation on the person detaining them to inform them immediately as to the reasons why they are being detained. Clause 105.28(2) merely requires the AFP Officer to inform the person as soon as practicable.
118.Clearly that is not sufficient in circumstances where a person is to be detained for a 24 hour period. We also note that there is a significant exception to the obligation to inform the person as soon as practicable provided by section 105.28(5) to the effect that there may be circumstances where the person being detained is not told of the order, or if the actions of the person detained ‘make it impracticable’ to do so, the AFP member will not have to comply with the requirement of providing the information under the terms of clause 105.28(7).
119.So far as the nature and the manner in which the person is informed are concerned, clause 105.28(8) suggests that the only obligation is to inform them orally in English. The circumstances in which an interpreter may be engaged to inform a person that they were detained pursuant to a preventative detention order are somewhat vague and uncertain. The provisions dealing with interpreters are set out in clauses 105.28(9) and (10).
120.While the order must be given to the person as soon as practicable, it is not clear why the order which must be given in writing at the time that it is made could not be provided to the person immediately. We consider that the person should be informed at the time he or she is taken into custody that the order has been made, the reasons for the order and a copy of the order.
121.Clause 105.30 requires the person in detention to be treated humanely. We note this section is consistent with section 19 of the HR Act. We note that clause 105.30 is expressed in general terms and we refer to the detailed Standard Rules as being the appropriate measures to have in place to ensure that the detainee is in fact treated humanely.
122.The qualifications on the detainee’s rights in clause 105.31 and following do raise some concerns. We note that in addition to a prohibited contact order clause 105.31 operates to restrict a person who is detained from contacting anyone in relation to informing them about the circumstances of their detention.
123.There are only limited bases upon which a person is entitled to contact another person and clause 105.31 provides that a person is not entitled to contact another person and may be prevented from contacting another person. This suggests that the regime is intended to operate on an incommunicado basis. Incommunicado detention is antithetical and inconsistent with the protection afforded the HR Act.
124.If contact is permitted then it appears that a person being detained is entitled to contact only one of his or her family members, or if a family member is not available then a person with whom they reside, an employer or co-worker. The manner of communication is by telephone, fax or e-mail, but that all appears to be contact that may be monitored by the AFP (clause 105.35).
125.Clause 105.32(2) provides that the person who the detained person contacts cannot disclose to that person of the fact that a preventative detention order has been made in relation to the person or the fact that the person is being detained under that order or the period for which the person is being detained under the order.
126.If contact is permitted, then it is permitted solely for the purpose of letting the person contacted know that the person being detained is ‘safe’ and that they are ‘not able to be contacted for the time being’. This provision is not only impracticable but is also inconsistent with the right to freedom of expression, and right in relation to preservation of family life.[19]
127.However, we do note perhaps helpfully, that in relation to relevant family member, the definition of family member in sub-section 3 extends to a same sex partner and we welcome the fact that the Commonwealth is prepared to recognise same sex partners in the context of this legislation. This is consistent with section 8(3) of the HR Act with respect to discrimination on the ground of same-sex status.
128.In terms of other persons who may be contacted by the detained person we note that clause 105.33 allows the person to contact the Commonwealth Ombudsman but solely for the purpose of making a complaint. In this respect it is not clear upon which basis the Ombudsman may be contacted and what information may be provided to the Ombudsman for the purpose of that contact.
129.We note the Standard Rules provide:

35. (1) Every prisoner on admission shall be provided with written information about the regulations governing the treatment of prisoners of his category, the disciplinary requirements of the institution, the authorized methods of seeking information and making complaints, and all such other matters as are necessary to enable him to understand both his rights and his obligations and to adapt himself to the life of the institution.

(2) If a prisoner is illiterate, the aforesaid information shall be conveyed to him orally.

36. (1) Every prisoner shall have the opportunity each week day of making requests or complaints to the director of the institution or the officer authorized to represent him.

(2) It shall be possible to make requests or complaints to the inspector of prisons during his inspection. The prisoner shall have the opportunity to talk to the inspector or to any other inspecting officer without the director or other members of the staff being present.

(3) Every prisoner shall be allowed to make a request or complaint, without censorship as to substance but in proper form, to the central prison administration, the judicial authority or other proper authorities through approved channels.

(4) Unless it is evidently frivolous or groundless, every request or complaint shall be promptly dealt with and replied to without undue delay.

130.We consider that the right to contact the Ombudsman should be made clear to the detainee at the earliest possible time. We also think that other relevant bodies, such as the Human Rights and Equal Opportunity Commission should also have a role in receiving and addressing complaints about the circumstances of a person’s detention. We note that the Commission is equipped to address complaints about alleged acts and practices which breach human rights: see section 11 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).
131.In relation to other protections for the person detained, we note that they are not allowed to be questioned other than for the purpose of ascertaining their welfare (clause 105.39). No identification material may be taken without that person’s consent. This provision is consistent with the rights in relation to bodily integrity and privacy.[20]

Offences in relation to disclosing the fact that a person is subject to an order

132.Clause 105.38 introduces a range of offences for various persons who may disclose the fact that a person is detained under a preventative detention order. This provision is inconsistent with the right to freedom of expression. The provisions do not appear to be practical, particularly where the disclosure may be to other family members including a child’s parent. We accept that freedom of expression may be restricted in the interests of national security and public order (see article 19(3) of the ICCPR). However, we do not think that a restriction which operates to make any disclosure a criminal is appropriate or adapted in the circumstances.

Access to lawyers

133.Clause 105.34 enables the person to be detained to contact a lawyer by telephone, fax or e-mail but solely for the purpose of:
obtaining advice from the lawyer about the person’s legal rights in relation to the preventative detention order, and/or
the treatment of the person in connection with the order, or
arranging for the lawyer to act for the person
134.The clause operates to allow the person to contact their lawyer of choice unless that lawyer is the subject of a prohibited contact order or is unable to be contacted. It is not clear why any lawyer should be included in a prohibited contact order.
135.If the lawyer of choice cannot be contacted the AFP member who is detaining the person must give the person reasonable assistance to choose another lawyer to contact. However, the provision notes that in recommending lawyers, the AFP may give priority to lawyers who have been given a security clearance at an appropriate level by the Department. This is not defined in any particular way, although it is noted that lawyers who do not have a security clearance may be contacted under this process.
136.If the lawyer is contacted then all of their contact is to be monitored by the AFP; (clause 105.35). Any communication must occur in English or where an interpreter is necessary, the interpreter may be used only in certain circumstances.
137.In relation to the lawyer being able to do their duty to the client, they are not to be given any document nor are they to be told if a prohibited contact order is made (clause 105.39(4-10)).
138.While the contact is monitored throughout the period, somewhat oddly, clause 105.46 preserves legal professional privilege.
139.A lawyer who assists a person will commit an offence carrying with it a five year imprisonment sentence if the lawyer discloses to any person the fact that the person is being detained save for making an application to a federal court.
140.Having regard to section 21 of the HR Act and other international standards such as the UN Basic Principles on the Role of Lawyers[21] the restrictions on access to lawyers and the limitations placed on the assistance that a lawyer may provided are matters of great concern. Access to a lawyer is an important safeguard in the right to a fair trial.[22] There should be the opportunity to free communication with a lawyer and the discussions should be confidential, if the client so wishes.[23] All relevant documentation concerning the detained person should be made available if the documents would assist the detained person challenge the legality of their detention.[24]
141.It is not apparent why the detainee has such limited rights in relation to communication with his or her lawyer and we do not think these provisions can be justified under section 28 of the HR Act.

Children’s rights

142.The Act clearly operates with respect to young people between the age of 16 and 18 years of age.
143.Clause 105.5(2) suggests that there may be circumstances in which a child under the age of sixteen may be detained where the AFP prior to the application has not ascertained the person’s age. In those circumstances the onus appears to be on the child to establish to the level of the AFP member’s satisfaction and on reasonable grounds that he or she is under the age of sixteen years of age. This presents the child with great practical difficulties as they are only able to contact one family member and may not have the resources or wherewithal to do it.
144.The very nature of dealing with a child who is under the age of 16 in these circumstances is inappropriate. There should not be an onus on the child to prove his or her age. The onus should be on the AFP to establish that the person is over the age of 16 before an order is sought.
145.This provision is inconsistent with the special protections provided by section 11 of the HR Act with respect to protecting children. Section 11(2) of the HR Act provides as follows:

(2) Every child has the right to the protection needed by the child because of being a child, without distinction or discrimination of any kind.

146.Article 14(4) of the ICCPR provides that:

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. [25]

147.In addition to section 11(2) of the HR Act there are other relevant international laws such as the United Nations Convention on the Rights of the Child (‘the CRC’).[26]
148.For the purpose of the CRC, a child is any person under the age of 18 years. Accordingly, there should be compelling reasons why a child should be detained under a preventative detention order. Such an order should only be made as a last resort. Article 37(b) of the CRC provides that:

No child shall be deprived of his or her liberty unlawfully of arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with law and shall be used only as a measure of last resort and for the shortest appropriate period of time

149.If a child is detained, then article 39(d) provides:

Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority and to a prompt decision on any such action.

150.We note that clause 105.36 provides that a child’s parents or guardians may visit the child in detention and also communicate with the child detained by telephone, fax or e-mail. However, a visit may only occur for a two hour period unless the AFP member allows the visits to take a longer period of time. Visits are also monitored. There is no reason why there should be any limits placed on the circumstances on the contact between child and his or her parents or guardian.
151.We also note that even where a parent is able to visit the child, there are special provisions dealing with the person/parent who visits being liable for an offence with imprisonment for up to five years if that parent tells any other person, including the other parent of the child or a sibling of the child, that the person is being detained under a preventative detention order. All that may be disclosed in those circumstances is letting another person contacted know that the detainee is safe but not able to be contacted for the time being.
152.In relation to taking fingerprints, recording samples of handwriting or photographs, there is a general prohibition in relation to AFP members taking identification material. We think this is appropriate. We note that there are provisions an order may be made by a Federal Magistrate, acting in a personal capacity, to allow that material to be taken by the AFP with respect to a person under the age of 18 years. These provisions are dealt with in clause 105.40(4)-(11). It is not clear why such provisions are necessary in the case of a child.

Legal proceedings and access to a federal court

153.The only provision that deals with any opportunity for review with respect to detention orders is clause 105.47. There is no right to review a prohibited contact order.
154.Proceedings may be brought in a court for a ‘remedy’ in relation to:
(i) a preventative detention order; or
(ii)the treatment of a person in connection with such an order.

The reference to a ‘court’ is assumed to be a federal court.[27] This in turn may be either the Federal Magistrates Court, the Federal Court or the Family Court of Australia.

155.Clause 105.47(2) ousts the jurisdiction of a court of a State or a Territory for any remedy if a remedy relates to a preventative detention order or the treatment of a person in connection with such an order and the proceedings are commenced while the order is enforced. It seems to suggest that a State or Territory court may have jurisdiction to deal with circumstances after the person is released in relation to one of the orders.
156.Further, the operation of 105.47(4) also excludes an application being made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in relation to a decision under Division 105. However, the Bill does not exclude the operation of the Judiciary Act 1903 (Cth) in particular sections 39B(1) and 39B(1A)(c) which would enable the Federal Court to exercise jurisdiction with respect to a matter arising under this law. We think it is appropriate that the general review powers of the Federal Court under these provisions are available.
157.Clause 105.47 does not provide any clear guidance to a litigant about the type of remedy that may be available. We have assumed that the clause does not intend exclude to any appropriate remedy including habeas corpus or orders setting aside the order.[28] We also assume that compensation may be ordered if a person has been wrongfully detained.
158.In relation to the proceedings which may be brought under this section, it is not clear whether a proceeding would be brought against the Commonwealth, the Commissioner of the AFP, or the Judge or Federal Magistrate who made the order.
159.We consider that a right of review and a right to challenge the legality of an initial order or continued order are essential. However, we think that the Bill should make clear and certain provisions for the type of proceedings which may be available.

Record keeping

160.Related to the right to seek review, we note that the Bill contains a number of provisions in relation to written applications, written orders and records relating to the person in detention. It is important that the AFP maintain appropriate records in relation to the person detained and those records are available in any legal proceedings.
161.The importance of record keeping in the context of preserving rights was recently addressed by the European Court of Human Rights in Yasin Ateş v. Turkey (determined 31 May 2005). The Court said:

[141] The Court’s case-law stresses the fundamental importance of the guarantees contained in Article 5 for securing the rights of individuals in a democracy to be free from arbitrary detention by the authorities. It has reiterated in that connection that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law, but must equally be in keeping with the very purpose of Article 5, namely, to protect the individual from arbitrary detention. In order to minimise the risks of arbitrary detention, Article 5 provides a corpus of substantive rights intended to ensure that the act of deprivation of liberty be amenable to independent judicial scrutiny and to secure the accountability of the authorities for that measure.

[142] In this connection, the recording of accurate holding data concerning the date, time and location of detainees, as well as the grounds for the detention and the name of the persons effecting it, is necessary for the detention of an individual to be compatible with the requirements of lawfulness for the purposes of Article 5§1.

162.For the reasons outlined above, we consider that the cumulative effect of the orders and implementations of the orders made under Division 105 of the Criminal Code are not compatible with the HR Act.

Powers to stop, question, search persons in relation to terrorist acts – Schedule 5

163.We note that the nature of these orders will impair a person’s right to privacy. However on balance, we consider that these measures would be compatible with section 28 of the HR Act.

Power to obtain information and documents – Schedule 6

164.We note that the nature of these orders will impair a person’s right to privacy and freedom of expression. However on balance, we consider that these measures would be compatible with section 28 of the HR Act.

Treason and sedition – Schedule 7

165.There is one aspect of the new offence of sedition to be introduced as clause 80.2 of the Criminal Code which we consider would operate in a manner which is inconsistent with various provisions in the HR Act concerned with freedom of expression, freedom of religion and discrimination. Clause 80.2(5) provides:

Urging violence within the community

(5) A person commits an offence if:

(a) the person urges a group or groups (whether distinguished by race, religion, nationality or political opinion) to use force or violence against another group or other groups (as so distinguished); and

(b) the use of the force or violence would threaten the peace, order and good government of the Commonwealth.

Penalty: Imprisonment for 7 years.

(6) Recklessness applies to the element of the offence that it is a group or groups that are distinguished by race, religion, nationality or political opinion that the first-mentioned person urges the other person to use force or violence against.

166.We note that when the Racial Hatred Act 1995 (Cth) was introduced to amend the Racial Discrimination Act 1975 (Cth) for the purpose of enacting protections against racial vilification and racial hatred, a proposal to make racial attacks on persons and property an offence was rejected. At the time, it was proposed that a new Part IVA be introduced into the Crimes Act to make provision for three new offences punishable by a fine or imprisonment up to 5 years. These provisions were rejected. One of the reasons was a concern that it would be a burden on freedom of expression. The provisions of the Racial Discrimination Act were considered to be sufficient.
167.Against this background, it is not clear to us why it is necessary to link the type of conduct described in clause 80.2(5) to race, religion, nationality or political opinion. We would be concerned that such a provision not be construed in a manner which permitted a person’s race, religion, nationality or political opinion to be used adversely and in a manner which results in discrimination.

Optical surveillance devices at airports and on board aircraft – Schedule 8

168.These provisions do not appear to raise any relevant concerns with respect to the HR Act.

Financial transaction reporting – Schedule 9

169.The proposed amendments to the Financial Transaction Reports Act 1988 will touch upon a person’s right to privacy. However, these provisions appear to be appropriate and adapted and therefore consistent with section 28 of the HR Act.

ASIO Powers – Schedule 10

170.With respect to expanded ASIO powers, we note that these provisions enhance existing powers. Without commenting on the range of existing powers, the terms of the proposed amendments do not appear to raise any particular issues with respect to the ACT.

Conclusion

171.The answer to the question asked of us is as follows. If the Anti-Terrorism Bill 2005 (Cth) was ACT legislation, the Attorney-General could not present a statement under section 37(3) of the ACT Human Rights Act stating that the Bill is consistent with human rights.

Lex Lasry QC

Latham Chambers,

MELBOURNE

Kate Eastman

St James Hall Chambers

SYDNEY

27 October 2005


[*] Memorandum of Advice to Peter Garrisson, Chief Solicitor, ACT Government Solicitor, 27 October 2005.

[1] As listed on http://www.nationalsecurity.gov.au/

[2] See for example the Senate Legal and Constitutional Committee reports concerning Inquiry into the Provisions of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 Tabled 18 June 2002 and Inquiry into the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 and related matters - Tabled 3 December 2002

[3] A special member of the AFP is dealt with in section 40E of the Australian Federal Police Act 1979 (Cth). It provides that a special member is a person who the Commissioner may, on such terms and conditions as he or she determines in writing, appoint a person as a special member of the Australian Federal Police to assist in the performance of its functions. The special member has any powers and duties that are expressly conferred or imposed on special members under a provision of this Act or of any other Act; and such of the powers and duties conferred or imposed on members as are specified in his or her instrument of appointment.

[4] Legislative Assembly for the ACT: 2003 Week 12 Hansard (18 November) at p. 4244.

[5] See Article 4 of the ICCPR, the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (1985) 7 HRQ 3 and the United Nations Human Rights Committee, General Comment No. 29: States of Emergency (article 4): 31/08/2001. CCPR/C/21/Rev.1/Add.11, General Comment No. 29.

A distinction is sometimes drawn between derogable and non-derogable human rights. The latter are those which must always be respected regardless of the circumstances. These rights include the right to life, freedom from torture and slavery, non-retrospective criminal laws and freedom of religion, thought and conscience. Other rights may be derogated from in certain circumstances. For example, article 4 of the ICCPR provides that in the time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation.

See In A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) [2004] UKHL 56 at paras 15ff for a discussion on the application the equivalent provision in the European Convention on Human Rights.

[6] On appeal to the House of Lords – [1999] UKHL 43; [2000] 2 AC 326, these observations were not challenged. See also Brown v Stott [2000] UKPC D3; [2001] 2 WLR 817 (PC) at [49].

[7] See NZ Court of Appeal in Noort v MOT [1992] NZCA 51; [1992] 3 NZLR 260, 283-4 (CA) and also in the context of the ECHR see Handyside v United Kingdom [1976] ECHR 5; (1978-1979) 1 EHRR 737, under the Human Rights Act 1998 (UK) - London Regional Transport v Mayor of London [2001] EWCA Civ 1491 per Sedley LJ at [57]-[58], Brown v Stott [2000] UKPC D3; [2001] 2 WLR 817, R v A (No.2) op cit at [38] and [91]. In Canada –Taylor v Canadian Human Rights Commission and the Attorney General of Canada [1990] 3 S.C.R. 892, R. v Oakes [1986] 1 S.C.R. 103 and McKinney v University of Guelph [1990] 3 S.C.R. 229.

[8] This Appendix has not been included here. It contained UN Security Council Resolution 1373 of 28 September 2001; UN Security Council Resolution 1456 of 20 January 2003; ‘Protection of human rights and fundamental freedoms while countering terrorism’, Commission on Human Rights resolution 2003/68; ‘Human rights and terrorism’, Commission on Human Rights resolution 2003/37; International Covenant on Civil and Political Rights, General Comment No. 29, States of Emergency (Article 4), 24 July 2001.

[9] Report of the United Nations Secretary General concerning Protecting human rights and fundamental freedoms while countering terrorism, General Assembly 22 September 2005, Doc A/60/374. See also the Final report of the Special Rapporteur on human rights and terrorism of the Sub-Commission on the promotion and protection of human rights dated 25 June 2004 presented to the United Nations Economic and Social Council E/CN.4/Sub.2/2004/40.

[10] See also Ireland v United Kingdom [1978] ECHR 1; (1978) 2 EHRR 25, Brogan v United Kingdom [1988] ECHR 24; (1988) 11 EHRR 117, Fox, Campbell & Hartley v United Kingdom [1990] ECHR 18; (1990) 13 EHRR 157, Brannigan and McBride v United Kingdom [1993] ECHR 21; (1993) 17 EHRR 539, Murray v United Kingdom [1994] ECHR 39; (1994) 19 EHRR 193, Aksoy v Turkey [1996] ECHR 68; (1996) 23 EHRR 553 and Marshall v United Kingdom (10 July 2001, Appn. No. 41571/98).

[11] See generally the discussion of retrospective legislation in the criminal law in Polyukovich v The Commonwealth & Anor. [1991] HCA 32; (1991) 172 CLR 501.

[12] See for example Lambert v France (24 August 1998) (88/1997/872/1084), European Court of Human Rights.

[13] M Nowak, UN Covenant on Civil and Political Rights CCPR Commentary, 1993 at page 172 and also Van Alphen v The Netherlands, United Nations Human Rights Committee, Communication No. 305/1988 adopted on 23 July 1990, A v Australia United Nations Human rights Committee, Communication No. 560/1993, adopted 30 April 1997.

[14] See George v Rockett & Anor [1990] HCA 26; (1990) 170 CLR 104.

[15] Article 40 of the Convention on the Rights of the Child and Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms, which is relevant to the Human Rights Act 1998 (UK). The right to a fair trial is also found various domestic human rights acts such as section 34 of the South African Bill of Rights 1996, section 27 of the New Zealand Bill of Rights Act (NZ) 1990.

[16] General Comment No 13 (1984), Article 14 (Twenty-first session, 1984), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 135 (2003).

[17] See Neumeister v Austria [1968] ECHR 1; (1968) 1 EHRR 91 and under the ICCPR see Avellanal v Peru, No. 202/1986 U.N. Doc CCPR/C/34/D/202/1986 (1998); Robinson v Jamaica No. 731/1996 U.N. Doc CCPR/C/68/D/731/1996 (2000), and Morael v France No. 207/1986 U.N. Doc. Supp. No. 40(A/44/40) at 210 (1989).

[18] See McVeigh, O’Neill and Evans v United Kingdom (1981) 5 EHRR 71, Camenzind v Switzerland (1997) 28 EHRR 458.

[19] McVeigh, O’Neill and Evans (1981) 5 EHRR 71

[20] See Murray v United Kingdom [1994] ECHR 39; (1994) 19 EHRR 193 and McVeigh, O’Neill and Evans (1981) 5 EHRR 71.

[21] Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990.

[22] Imbroscia v Switzerland [1993] ECHR 56; (1993) 17 EHRR 441, Murray v United Kingdom [1996] ECHR 3; (1996) 22 EHRR 29.

[23] S v Switzerland [1991] ECHR 54; (1991) 14 EHRR 670, Golder v United Kingdom (1975) 1 EHRR 524 and Silver v United Kingdom [1983] ECHR 5; (1983) 5 EHRR 347.

[24] McMichael v United Kingdom [1995] ECHR 8; (1995) 20 EHRR 205.

[25] See also section 22(3) of the HR Act with respect to children involved in criminal proceedings and the Human Rights Committee - General Comment 13 [16].

[26] See also United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘The Beijing Rules’) Adopted by General Assembly resolution 40/33 of 29 November 1985, Guidelines for Action on Children in the Criminal Justice System, Recommended by Economic and Social Council resolution 1997/30 of 21 July 1997, United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), Adopted and proclaimed by General Assembly resolution 45/112 of 14 December 1990. Compare also approach taken by the European Court - Nortier v The Netherlands, 24 August 1993, Series A no. 267 and T v UK and V v UK [1999] ECHR 171; (1999) 30 EHRR 121 with respect to article 6(1) of the ECHR.

[27] Express reference is made to ‘federal court’ in other clauses – see clauses 105.24(1)(b) and 105.38(2)(a)(i).

[28] See De Wilde, Ooms and Versyp v Belgium [1970] ECHR 2; (1971) 1 EHRR 373.


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