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3 May 2007 the Hon Philip Ruddock MP Attorney-General PO Box 6022 House of Representatives Parliament House CANBERRA ACT 2600

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3 May 2007 the Hon Philip Ruddock MP Attorney-General PO Box 6022 House of Representatives Parliament House CANBERRA ACT 2600 3 May 2007 AP:CJ Alice Palmer (03) 9607 9381 [email protected] The Hon Philip Ruddock MP Attorney-General PO Box 6022 House of Representatives Parliament House CANBERRA ACT 2600 By post and by email ([email protected]) Dear Mr Attorney UN Special Rapporteur Report on Australia’s human rights compliance while countering terrorism The United Nations (UN) Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism has expressed many concerns about Australia’s human rights performance in his report, Australia: Study on Human Rights Compliance while Countering Terrorism (Special Rapporteur’s Report).1 The Law Institute of Victoria (LIV) urges you to take immediate action to remedy the breaches of human rights resulting from Australia’s counter-terrorism laws and practices. To this end, the LIV requests information from you on: • how the Government has responded to the Special Rapporteur and to the UN Human Rights Council; and • what the Government proposes to do to address the concerns raised in the Special Rapporteur’s Report. The Special Rapporteur’s Report was submitted to the UN Human Rights Council for consideration at the Council’s fourth session in March 2007. It is an authoritative document, which was prepared after consultation with the Australian Government and with the academic community and non-government organisations. As a report to a UN body, it is made available to the world and challenges Australia’s claim to the international community that we are a fair and decent society. The Special Rapporteur’s Report is balanced. It acknowledges some good practices by the Government in countering terrorism, for example, by seeking to strengthen counter-terrorism in the Asia–Pacific region. Nonetheless, it notes that there is room for improvement and that some matters require urgent attention. 1 Document available at: http://daccessdds.un.org/doc/UNDOC/GEN/G06/155/49/PDF/G0615549.pdf?OpenElement First, the Special Rapporteur’s Report urges the Australian Government not to enact counter-terrorism legislation which diminishes human rights in haste, as has happened in the past. The LIV submits that legislation that diminishes human rights should be enacted only if found to be demonstrably necessary in a free and democratic society and only after extensive and meaningful public consultation and parliamentary debate. Moreover, the LIV reiterates its firm view that the criminal law as it stood prior to the amendments to counter-terrorism, security and telecommunications interception laws since 2001 was adequate to deal with security and terrorism offences.2 Second, the Special Rapporteur’s Report notes with grave concern that the Migration Act 1958 (Cth) (Migration Act) has been interpreted by the High Court of Australia as permitting the indefinite – potentially life-long – detention of unsuccessful asylum seekers. The Special Rapporteur also notes that there is no legislative provision to prevent the return of asylum seekers to a place where they would be at risk of torture or ill-treatment. The LIV deplores Australia’s laws on the mandatory and indefinite detention of so-called ‘unlawful non-citizens’. The Migration Act (s.196) should be amended to provide for appropriate limits to the duration of detention. In addition, the Migration Act should be amended to clearly prohibit the return of unsuccessful asylum seekers to a place where their lives or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion, or where they would be at risk of torture or ill-treatment, as provided by international treaties to which Australia is a party. Third, the Special Rapporteur’s Report urges the federal Government to enact proper federal laws to protect the rights enshrined in the International Covenant on Civil and Political Rights, particularly in respect of counter-terrorism. In the LIV’s view, a federal Charter of Rights would provide some assurance that the federal Government’s response to terrorism takes due account of human rights. The LIV submits that the Government should undertake a public inquiry to consider the enactment of a federal Charter of Rights that reflects the provisions of the Victorian Charter of Human Rights and Responsibilities Act 2006 and other human rights instruments. Other matters identified in the Special Rapporteur’s Report as requiring attention include: • The classification of terrorism. The LIV agrees with the Special Rapporteur that the definition of ‘terrorist act’ in the Criminal Code Act 1995 (Cth) (Criminal Code) (s100.1(1)) should be narrowed. For example, a ‘terrorist act’ should not include property damage that is not accompanied by an intention to cause death or serious bodily injury. • The classification of terrorist entities and organisations. The LIV agrees with the Special Rapporteur that the designation by the Attorney-General of bodies as ‘terrorist organisations’ under the Criminal Code (s102.1(2)) should be based on ‘beyond reasonable doubt’ considerations, not on the lesser standard of ‘reasonable grounds’ as is now the case. • Incitement and sedition. The LIV agrees with the Special Rapporteur that the inclusion of ‘praising’ a terrorist act in the definition of ‘advocating’ terrorism in the Criminal Code (s102.1(1A)(c)) is too broad and imprecise in that it could cover general statements on terrorism. The LIV has previously called for changes to Australian sedition laws.3 If, however, s80.2 of the Criminal Code is retained, the LIV agrees with the Special Rapporteur that it should be made clear that the crime of sedition is subject to Australia’s obligations under international humanitarian law. • Investigative and intelligence-gathering powers. The Special Rapporteur expresses concern about the period of 28 days in which the Australian Federal Police can conduct random searches of people in an area or place declared by the relevant Minister to be a specified security zone under the Crimes Act 1914 (Cth) (s3UJ). The LIV considers that these powers are a disproportionate interference with liberty. The LIV agrees with the Special Rapporteur that the period for searches 2 See LIV submissions on the reviews of security legislation conducted by the Security Legislation Review Committee and the Parliamentary Joint Committee on Intelligence and Security respectively in January and July 2006, available at https://www.liv.asn.au/members/sections/submissions/. 3 See the LIV submission on the review of sedition laws by the Australian Law Reform Commission in June 2006, available at https://www.liv.asn.au/members/sections/submissions/. should be shortened and the legislation amended to ensure that this measure cannot be used to restrict lawful demonstrations. • Powers of detention and control. The LIV agrees with the Special Rapporteur that preventative detention and the making of control orders without proper disclosure of the information on which the order is based denies people due process (see, e.g., Criminal Code, s105.7(2A) and s104.5(2A) respectively). Similarly, the LIV considers that non-citizens refused a visa and detained under the Migration Act because of a negative security assessment should be entitled to proper disclosure of the information used as a basis for the assessments. The LIV notes developments in the United Kingdom which support the view that the failure to disclose certain information, upon which control orders are sought and made, denies people the right to a fair hearing if adequate safeguards are not put in place (see, e.g., Secretary of State for the Home Department v MB [2006] EWCA Civ 1140). The LIV’s request for action to remedy Australia’s human rights breaches in countering terrorism is made against a background of many past submissions. Over a number of years, the LIV has drawn attention to the Government’s failure to respect the rule of law and human rights, especially on counter-terrorism measures, the mistreatment of asylum seekers and its failure to ensure just treatment of David Hicks. The LIV reiterates the concerns raised in its past submissions.4 I look forward to your reply. I also invite you to meet with the LIV to discuss the Government’s response to the Special Rapporteur’s Report. Please contact Alice Palmer, the solicitor for the LIV’s Administrative Law and Human Rights Section, in connection with this matter on (03) 9607 9381 or at [email protected]. Yours sincerely Geoffrey Provis President Law Institute of Victoria 4 See e.g. above fn. 2 and fn. 3. .
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