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Law Council of Australia Shadow Report to Australia’s Common Core Document United Nations Human Rights Committee 29 August 2008 CONTENTS CONTENTS .....................................................................................................2 EXECUTIVE SUMMARY .................................................................................5 PROPOSED QUESTIONS FOR LIST OF ISSUES .......................................11 1. INTRODUCTION ......................................................................................16 1.1 Role of the Law Council of Australia................................................16 1.2 Focus Areas of the Shadow Report.................................................16 1.2.1 ICCPR Rights ...........................................................................16 1.2.2 Federal Law and Policies .........................................................17 1.2.3 Time Period Covered................................................................17 1.2.4 Recent Measures Adopted by the Rudd Government ..............17 1.3 General Comments on the Reporting Process ................................18 2. GENERAL FRAMEWORK FOR THE PROTECTION AND PROMOTION OF HUMAN RIGHTS .....................................................................................19 2.1 Acceptance of international human rights norms.............................19 2.1.1 Status of International Law in Australia ....................................19 2.1.2 Effect of international law on administrative decision making...20 2.2 Australia’s attitude towards the UN Treaty System..........................21 2.3 Government’s priorities for human rights.........................................23 3. ARTICLE 1 RIGHT TO SELF-DETERMINATION ................................25 3.1 Declaration on the Rights of Indigenous People..............................26 3.2 Abolition of the Aboriginal and Torres Strait Islander Commission ..27 3.3 Abolition of the NT Aboriginal lands permit system .........................28 3.4 Aboriginal Benefits Account (ABA) ..................................................30 4. ARTICLE 2(1) NON-DISCRIMINATION AND EQUALITY......................33 4.1 Native Title Amendment Act 1998 (Cth) ..........................................33 4.2 Crimes Amendment (Bail and Sentencing) Act 2006.......................34 4.3 Northern Territory Emergency Intervention......................................35 5. ARTICLE 2(2) AND (3) GIVING EFFECT TO RIGHTS PROTECTED IN COVENANT AND ACCESS TO REMEDIES FOR BREACH.........................37 5.1 Judiciary ..........................................................................................37 5.1.1 Lack of judicial engagement with international human rights law 38 5.2 Limited range of enforceable remedies............................................42 5.3 Specialised human rights machinery ...............................................44 5.3.1 Human Rights and Equal Opportunity Commission..................44 5.3.2 Aboriginal and Torres Strait Islander Social Justice Commissioner.........................................................................................45 5.4 An alternative source of human rights protection? The Bill of Rights Debate........................................................................................................46 6. ARTICLE 6 RIGHT TO LIFE.................................................................48 6.1 The Death Penalty...........................................................................48 6.2 An Equivocal Policy of Opposition ...................................................49 6.3 Extradition, Mutual Assistance and Agency to Agency Assistance..50 6.3.1 Extradition ................................................................................50 6.3.2 Mutual Assistance ....................................................................50 6.3.2 Agency-to-Agency Assistance..................................................52 6.3.3 Case Study - ‘Bali 9’ .................................................................53 2 7. ARTICLE 7 FREEDOM FROM TORTURE...........................................56 8. ARTICLE 9 RIGHT TO LIBERTY AND SECURITY OF PERSON........57 8.1 Security measures introduced since 2001 - Overview.....................58 8.1.1 No demonstrated necessity for measures introduced...............60 8.2 Security measures introduced since 2001 - New Terrorism Offences 62 8.2.1 Definition of ‘terrorist act’..........................................................62 8.2.2 Imprecise offences result in an invalid restriction on Article 9 Rights 64 8.2.3 Financing terrorism...................................................................66 8.3 Security measures introduced since 2001 – new investigative and law enforcement powers ............................................................................67 8.3.1 Detention without charge – the AFP and the ‘dead time’ provisions................................................................................................68 8.3.2 Case Study – Detention of Dr Haneef ......................................70 8.3.3 Control orders and preventative detention................................72 8.3.4 Changes to bail presumptions ..................................................75 8.4 ASIO Compulsory Questioning and Detention Powers....................76 8.4.1 Detention of non-suspects for the purposes of information gathering.................................................................................................78 8.5 Immigration detention ......................................................................80 8.5.1 International condemnation ......................................................80 8.5.2 Need for judicial oversight ........................................................81 8.5.3 The 2005 amendments.............................................................82 8.5.4 Recently Announced Reforms..................................................83 9. ARTICLE 10 TREATMENT IN DETENTION ..........................................85 9.1 Immigration detention ......................................................................85 10. ARTICLE 12 RIGHT TO LIBERTY OF MOVEMENT............................89 10.1 Control orders..................................................................................89 11. ARTICLE 13 EXPLUSION OF ALIENS ................................................92 11.1 Case Study 1 – Scott Parkin............................................................92 11.2 Case Study 2 – Dr Haneef...............................................................94 12. ARTICLE 14 RIGHT TO FAIR TRIAL...................................................98 12.1 Security measures since September 2001 ......................................99 12.2 Control Orders and Preventative Detention Orders .......................100 12.2.1 Control Orders........................................................................100 12.2.2 Preventative Detention Orders ...............................................101 12.2.3 Constitutional Challenge - Thomas v Mowbray ......................103 12.3 Right to silence and privilege against self-incrimination ................104 12.3.1 Questioning and Detention powers of ASIO ...........................105 12.3.2 ACC and Coercive Powers.....................................................106 12.4 Security clearances for lawyers .....................................................108 12.5 Closed hearings.............................................................................110 12.6 Mandatory sentencing ...................................................................111 12.7 Double jeopardy reform .................................................................113 12.8 A competent and independent judiciary.........................................116 12.8.1 Threats to the independence of the judiciary..........................116 12.8.2 Mechanisms to ensure public confidence in the competency of the judiciary...........................................................................................118 12.8.3 Ensuring judicial appointments are fair and transparent.........119 3 13. ARTICLE 17 RIGHT TO PRIVACY ...................................................121 13.1 Telecommunication Interception....................................................121 13.1.1 B-Party Warrants....................................................................121 13.1.2 Access to stored communications ..........................................123 13.1.3 Access to telecommunications data on a prospective basis...125 14. ARTICLE 19 FREEDOM OF OPINION AND EXPRESSION..............127 14.1 Sedition Laws ................................................................................127 14.1.1 The new offences ...................................................................127 14.1.2 An invalid restriction of Article 19 rights..................................128 14.2 Classification of Terrorist Material .................................................131 14.2.1 Failure to Demonstrate a Need for the Amendments .............132 14.2.1 Broad and ambiguous nature of amendments........................133 15. ARTICLE 22 FREEDOM OF ASSOCIATION.....................................135 15.1 Proscribing organisations as ‘terrorist organisations’.....................135 15.1.1 Unfettered executive discretion to proscribe terrorist organisations ........................................................................................135 15.1.2 Attribution of characteristics to
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