Box L23 South Maroubra NSW 2035 Australia
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Website http://www.hrca.org.au ABN 51998793677
9 April 2001
Mr Noel Gregory
Senate Legal and Constitutional Committee
CANBERRA ACT 2600
By Email: email@example.com
Dear Mr Gregory
1. The Human Rights Council of Australia (“the Council”) is an independent, not-for-profit, non-government organisation established for the purpose of promoting respect for and compliance with the Universal Declaration of Human Rights (UDHR) and associated United Nations covenants such as the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic Social and Cultural Rights (ICESCR).
2. Members of the Council were profoundly shocked by the events of September 11, last year. Both the UDHR and the ICCPR provide that individuals have a right to security of the person. State Parties are obliged to respect and ensure the observance of this right. The right, however, is not absolute and must be considered in context with other rights guaranteed by the UDHR and related international covenants.
3. Set out below are the Council’s detailed submissions on the Security Legislation Amendment (Terrorism) Bill [No 2] (“the Bill”). Briefly, the Council recommends that:
(a) It is submitted that if sub-clause 80.1(1)(f) is to be retained, the word “assists” and the expression “engaged in armed hostilities” should be specifically and narrowly defined.
(b) The Bill should be amended by replacing sub-clause 80.1(4) with a scheme similar to that which operates under Part 1C of the Crimes Act 1914 (Cth) or Part 10A of the Crimes Act 1900 (NSW) such that a person may not be detained more than, say, four (4) hours, except if an extension of time has been obtained from a court. There should be a limit to the number of extensions of the period of detention that may be sought by investigating authorities.
(c) If the Bill is enacted, it should be subject to renewal on a regular basis – perhaps annually following review by the Senate Legal and Constitutional Committee. The review process should give specific consideration to whether the legislation is justified, having regard to the pre-condition under Article 4 of the ICCPR for a “public emergency which threatens the life of a nation”.
(d) There is uncertainty as to the elements of each of the new terrorism offences. This offends fundamental principles of criminal responsibility.
(e) There is also doubt as to whether the new terrorism offences are constitutionally valid. If this is correct but the High Court does not obtain an opportunity to determine the constitutional validity of the laws until after organisations have been proscribed, the Bill will have breached the freedom of association guaranteed by the ICCPR and the UDHR.
(f) In relation, especially, to new terrorism offences carrying a maximum penalty of life imprisonment, the risk of a miscarriage of justice is too great to justify dispensing with proof of fault.
4. Regrettably, the short time from for submissions has not enabled the Council to give consideration to the related legislation.
Provision of Assistance to Those Engaged in Armed Hostilities against an Australian Defence Force (Sub-Clause 80.1(1)(f))
5. Sub-clause 80.1(1)(f) of the Bill makes it an offence for a person to “assist” another country or an organisation that is “engaged in armed hostilities” against the Australian Defence Force. The maximum penalty for an offence against this clause is life imprisonment.
6. The Bill does not define what is meant by the word “assists”, nor does it define what is meant by the expression, “engaged in armed hostilities”. Insofar as “assists” may capture humanitarian assistance of the kind provided by neutral agencies such as the International Committee of the Red Cross and Médecins Sans Frontičres, sub-clause 80.1(1)(f) exposes these and other similar organisations and their members to criminal liability. Doubtless, it was not the intention of the drafter to treat the provision of such assistance by neutral agencies as a criminal offence.
7. There may also be other forms of assistance that the drafter did not intend to proscribe. For example, it is conceivable that the provision of financial assistance to resistance groups such as Fretilin may constitute treason, contrary to clause 80.1(1), if: (1) the definition of “assists” is not narrowly defined; (2) the Australian Defence Force is engaged in peacekeeping duties in a territory where the resistance group is active; and (3) the concept of peacekeeping is given a broad construction so as to include the quelling of all military activities, including those by forces that may be regarded as friendly or sympathetic to the peacekeepers.
8. There should no risk that humanitarian and these other types of assistance will attract any criminal liability. It is submitted that if sub-clause 80.1(1)(f) is to be retained, the word “assists” and the expression “engaged in armed hostilities” should be specifically and narrowly defined.
What is “reasonable”?
9. Sub-clause 80.1(4) enables a person to be arrested and detained, with or without charge, for “a reasonable time”, pending a determination by the Attorney General as to whether to provide written consent for the commencement of proceedings for an offence against clause 80.1. Presumably, the period of detention after arrest will be used by authorities to question the suspect and make other enquiries.
10. It is by no means novel for legislative provision to be made permitting detention after arrest without charge for the purpose of questioning or interrogation by authorities. See, for example, Part 1C of the Crimes Act 1914 (Cth) and Part 10A of the Crimes Act 1900 (NSW). Section 23C of the Crimes Act 1914 (Cth) permits a person to be detained for the purpose of investigating whether the person committed a Commonwealth offence, but not for longer than the investigation period. The investigation period of 4 hours or, in the case of persons who are or appear to be under 18 or Aboriginal persons or Torres Strait Islanders, 2 hours. If, at the end of this period, a justice has not extended the period of detention pursuant to section 23D, the person must be released. Part 10A of the Crimes Act 1900 (NSW) is to a similar effect.
11. In the absence of such provisions, the purpose of arrest is to take the person arrested before a justice to be dealt with according to law: see, for example, Williams v R (1986) 161 CLR 278. This common law requirement is consistent with Article 9(3) of the ICCPR which relevantly provides that “[a]nyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable period of time or to release” (emphasis added).
12. Clause 80.1 would appear to differ from other provisions which specifically allow for detention after arrest for the purposes of questioning, in that it fails to specify any upper limit on the period of time during which a person may be detained for investigative purposes. For example, there is no reference back to Part 1C of the Crimes Act 1914 (Cth).
13. The absence of any upper limit on the period of detention after arrest would appear to have the effect that the decision as to what is “reasonable” is entirely arbitrary. If this be correct, the provision offends against Article 9(1) of the ICCPR which provides that “[n]o one shall be subjected to arbitrary arrest or detention”.
Is the law necessary?
14. Crimes against humanity such as those committed on September 11 last year, were the catalyst for the promulgation of the UDHR. As much is acknowledged by paragraph 2 of the Preamble to the UDHR, which provides that:
15. Article 3 of the UDHR and Article 9(1) of the ICCPR entrench the right to freedom from fear by providing that everyone has the right to security of the person. Article 2(2) of the ICCPR provides that:
Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognised in the present Covenant.
16. The right to security of the person is not, however, absolute. The ICCPR does not evidence an intention, whether express or implied, that Article 9(1) should prevail to the extent of any inconsistency with Article 9(3).
17. The Council also recognises that, pursuant to Article 4, a State Party to the ICCPR may, “in time of public emergency which threatens the life of the nation”, take measures derogating from articles other than those specified in Article 4(2). Article 9 is not among those specified in Article 4(2) from which there may be no derogation. A question necessarily arises, however, as to whether the “public emergency” condition precedent can be satisfied in the present conditions.
18. This question was considered by the European Court of Human Rights in Brogan v United Kingdom (1988) Ser. A, No. 145-B, 11 EHRR 117. At issue was whether the detention of persons for between 4 days and 6 hours and 6 days and 16 hours pursuant to the Prevention of Terrorism Act (UK), constituted breaches of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) in terms similar to Article 9 of the ICCPR. In particular, Article 5(3) of the Convention provided that:
Everyone arrested or detained in accordance with the provision of paragraph (1)(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
19. It is to be noted that the matter came on for decision after the deaths of thousands of people in “the troubles” in Northern Ireland. The Prevention of Terrorism Act was introduced in 1976 following pub bombings in England that killed 21 people. In introducing the Act into Parliament, the then British Home Secretary Roy Jenkins said, “These powers are draconian. In combination they are unprecedented in peacetime. I believe they are necessary to meet the clear and present danger.”
20. It is further noted that the Prevention of Terrorism Act was subject to renewal each year. This was in recognition of the special powers of arrest and detention for which it made provision. Annual reports were required to be submitted to Parliament before renewal of the Act each year. The Act resulted in some of the most serious and prolonged miscarriages of justice in British legal history - the wrongful convictions of the Birmingham Six (for the Birmingham Pub Bombings) and Guildford Four (for the Guildford Four pub bombings) and it is worth further noting that the Act did not prevent terrorism or end the conflict in Northern Ireland.
21. The Court accepted in Brogan that “… subject to the existence of adequate safeguards, the context of terrorism in Northern Ireland has the effect of prolonging the period during which the authorities may, without violating Article 5(3), keep a person suspected of serious terrorist offences in custody before bringing him before a judge or other judicial officer.” However,
… the scope for flexibility in interpreting and applying the notion of ‘promptness’ is very limited. In the Court’s view, even the shortest of the four periods of detention namely four days and six hours spent in police custody by Mr McFadden, falls outside the strict constraints as to time permitted by the first part of Article 5(3). To attach such importance to the special features of this case as to justify so lengthy a period of detention without appearance before a judge or other judicial officer would be an unacceptably wide interpretation of the plain meaning of the word ‘promptly’. An interpretation to this effect would import into Article 5(3) a serious weakening of a procedural guarantee to the detriment of the individual and would entail consequences impairing the very essence of the individual and would entail consequences impairing (sic) the very essence of the right protected by this provision. The Court thus has to conclude that none of the applicants was either brought ‘promptly’ before a judicial authority or released ‘promptly’ following his arrest. The undoubted fact that the arrest and detention of the applicants were inspired by the legitimate aim of protecting the community as a whole from terrorism is not on its own sufficient to ensure compliance with the specific requirements of Article 5(3).
There has thus been a breach of Article 4(3) in respect of all four applicants.
22. The conditions that attend the introduction of the Bill are materially different from those which obtained to the Prevention of Terrorism Act (UK). In particular, there is no evidence that Australia is suffering under a “public emergency which threatens the life of a nation” such as would justify derogation from Article 9. While not disputing that Australia may be, or may become, a target for terrorist attacks, no such attacks have occurred.
23. Even if the “public emergency” pre-condition could be invoked, it seems likely that the absence of any upper limit on the period during which a person may be detained before being released or brought before a court, will have the effect that sub-clause 80.1(4) will be in breach of Australia’s obligations under Article 9(3) of the ICCPR.
24. It is submitted that consideration be given to replacing sub-clause 80.1(4) with a scheme similar to that which operates under Part 1C of the Crimes Act 1914 (Cth) or Part 10A of the Crimes Act 1900 (NSW) such that a person may not be detained more than, say, four (4) hours, except if an extension of time has been obtained from a court. It is further submitted that there be a limit to the number of extensions of the period of detention that may be sought by investigating authorities.
25. If the Bill is enacted, it should be subject to renewal on a regular basis – perhaps annually following review by the Senate Legal and Constitutional Committee. The review process should give specific consideration to whether the legislation is justified, having regard to the pre-condition under Article 4 of the ICCPR for a “public emergency which threatens the life of a nation”.
What are the New Terrorism Offences?
26. Clause 101.1 would make it an offence for a person to engage in a terrorist act. A “terrorist act” is defined by clause 100.1 to mean action or a threat of action that, among other things, involves serious harm to a person and is done or made with the intention of advancing a political, religious or ideological cause. A terrorist act does not include lawful advocacy, protest or dissent, nor does it is include industrial action. The maximum penalty for engaging in a terrorist act is imprisonment for life.
27. Clause 101.2 would make it an offence to provide or receive training in the making or use of firearms, explosives or chemical, biological, radiological or nuclear weapons where the training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act. Again, the penalty is life imprisonment.
28. Clause 101.3 would make it an offence for a person to direct the activities of an organisation that is directly or indirectly concerned with fostering preparation for, the engagement of a person in, or assistance in a terrorist act. The maximum penalty is imprisonment for life.
29. Clause 101.4 would make it an offence for a person to possess a thing that is connected with preparation for the engagement of a person in, or assistance in, a terrorist act. The maximum penalty for this offence is life imprisonment.
30. Clause 101.5 would make it an offence for a person to collect or make a document that is connected with preparation for the engagement of a person in, or assistance in, a terrorist act. Again, the maximum penalty is imprisonment for life.
31. Clause 101.6 would make it an offence for a person to do any act in preparation for, or planning, a terrorist act. The maximum penalty is imprisonment for life.
32. Clause 102.2 enables the Attorney-General to ban an organisation if satisfied on reasonable grounds that one or more of the criteria set out in sub-clause 102.2(1) applies. Clause 102.4 would make it an offence for a person to be involved with a proscribed organisation in a number of ways. Specifically, an offence would be committed if the person:
(a) directed the activities of the organisation;
(b) received funds from or made funds available to, the organisation;
(c) was a member of the organisation; or
(d) assisted the organisation.
33. The maximum penalty for an offence contrary to clause 102.4 is 25 years imprisonment.
34. Clause 100.2 recites the purported constitutional basis for the new terrorism offences that would be created by Part 5.3, if it were to be enacted. It does this by asserting that an action, or threat of action, is an offence if the Commonwealth has power to create the offence (sub-clause 100.2(1)). Sub-clause 100.2(2) specifically includes actions or threats of action that may fall within the ambit of specific heads of power such as the banking power or the power to make laws with respect to the postal system.
35. It may be accepted that the Commonwealth has power to legislate to protect itself against internal threats to the state. The source of such power might be found either in a combination of the incidental power (Commonwealth Constitution, section 51(xxxix)) and the Executive power (Commonwealth Constitution, section 61): see, for example, the Communist Party case per Fullagar J at 260. Alternatively, it might derive from an inherent right to self-protection: see, for example, R v Kidman (1915) 20 CLR 425 at 440.
36. It may also be accepted that the Commonwealth has power to make laws in relation to, among other things, the banking system, the postal system and Commonwealth places.
37. What is not clear, however, are the elements of the each of the offences. As presently drafted, these may vary depending upon the nature of the action, or threat of action. For example, the elements of an offence of committing a terrorist act that affects interests of a constitutional corporation may be quite different to a terrorist action that involves the use of an electronic communication. Would, for example, the recent Woomera protests constitute a terrorist act under the Bill? If so, is this Parliament’s intention? The lack of certainty as to what is in fact proscribed offends against fundamental principles of criminal responsibility.
38. The validity of the laws will also be in question if clause 100.2 amounts to an expression of opinion by the Parliament as to the validity of its own laws. This issue was considered by the High Court in Australian Communist Party v Commonwealth (1951) 83 CLR 1 (the Communist Party case). The High Court held, among other things, that the opinion of the Parliament (which took the form of a preamble to the Communist Party Dissolution Act) could not be taken into account when determining the constitutional validity of the Act. Rather, the Act must, of itself, have a proper repository of power within the Constitution.
39. To the extent that the Commonwealth might seek to place reliance upon the defence power (Commonwealth Constitution, section 51(vi)), the Communist Party case would seem to provide authority for the proposition that such reliance is misplaced in circumstances such as the present where, despite the “war against terrorism”, Australia enjoys ostensible peace: cf Communist Party case.
40. Among the principles developed by the High Court in the Communist Party case was the notion that Parliament may not legislate to authorise the Executive to forbid the existence, membership or carrying on of particular organisations. Rather, the appropriate approach is to lay down objective standards by which the activities of the organisations concerned can be objectively determined.
41. Clause 102.2 is to the same effect as the provisions that were under consideration in the Communist Party case in that it seeks to reserve to the Executive, rather than the courts, the power to ban organisations. This is so even though the some of the decision-making criteria (see paragraphs (a) and (b) of sub-clause 102.2(1)) are decisions that can only be determined by a court, namely, whether a person has committed an offence.
42. Even if it is valid for this power to be reposed in the Executive rather than the judiciary, it is by no means clear that the criteria for proscribing an organisation meet the test laid down by the High Court for clarity and objectivity.
43. In the absence of clear, objective, justiciable tests for the power to ban organisations, there would appear to be a real risk that clause 102.2 is unconstitutional. If it is but this question cannot be determined until some time after the power has been used to ban organisations, the freedom to associate of many politically active organisations may be at risk. Exercise of an unconstitutional power would contravene the freedom to associate guaranteed by Article 22 of the ICCPR and Article 20 of the UDHR. The Council urges that the Committee recommend against any further legislative action in respect of clause 102.2 in its current form.
Absolute & Strict Liability
44. In relation to components of the offences that would be created by clauses 101.2, 101.4 and 101.5, absolute liability applies. As indicated above, the maximum penalty for each of these offences is imprisonment for life.
45. In relation to the offences created by clause 102.4, strict liability applies to the element that the organisation is a proscribed organisation.
46. Section 6.2 of the Criminal Code 1995 provides that an offence is an offence of absolute liability if there are no fault elements for any of the physical elements of the offence and the defence of mistake is unavailable. Section 5.1 of the Code provides that a fault element for a particular physical element may be intention, knowledge, recklessness or negligence. In the absence of specification, the fault element is intention: Code, section 5.6
47. Strict liability offences are similar to absolute liability offences, except that the defence of mistake is available.
48. Traditionally, absolute and strict liability offences have been limited to relatively minor offences such as parking offences.
49. For reasons mentioned above, the Council has significant doubt about the validity and appropriateness of the proscribed organisation provisions. Quite apart, however, from these doubts, the Council is concerned that, in circumstances where individual liberty is at stake for such significant periods of time, the risk of a miscarriage of justice is too great to justify dispensing with proof of fault. This risk can only be exacerbated by the denial of a defence of mistake.
50. The Council notes that a significant number of existing serious Commonwealth criminal offences, such as hijacking of aircraft contrary to section 13 of the Crimes (Aviation) Act 1991, are defined as absolute or strict liability offences and carry heavy penalties, including life imprisonment. Time has not permitted a thoroughgoing comparison of these offences. It is nevertheless submitted that the mere fact that such offences are treated on an absolute or strict liability basis does not of itself provide a proper foundation for applying a similar approach to the offence provisions in the Bill.
51. The Council recognises and supports the need for suitable measures to help prevent the occurrence of events such as those which occurred in the United States on 11 September, 2001. Such measures, however, must not denigrate the foundations upon which our democracy is built. These foundations include the concepts of civil society and the rule of law. The measures contemplated by the Bill would appear to represent significant incursions into the rule of law.
52. More fundamentally, the measures if enacted would infringe Australia’s human rights obligations at international law.
53. The Council submits that the Bill be re-considered in the light of these submissions and the recommendations set out at paragraph 3, above.
HUMAN RIGHTS COUNCIL OF AUSTRALIA INC.