Australian Capital Territory
HUMAN RIGHTS OFFICE
Level 12, 14 Moore Street
Canberra City 2601
GPO Box 158
CANBERRA ACT 2601
TTY: (02) 62070525
ACT Government Homepage:http://www.act.gov.au
Tel:
Fax:
(02) 62070576
(02) 62070587
Mr Jon Stanhope, MLA
Chief Minister and Attorney-General
ACT Legislative Assembly
GPO Box 1020
CANBERRA ACT 2601
Dear Mr Stanhope,
Re: Anti-Terrorism Bill (No. 2) 2004 (Commonwealth) - amendment to Criminal
Code 1995 (Commonwealth)
I am writing to you in response to your request of 10 August 2004 under paragraph
41(1)(c) of the Human Rights Act 2004 (ACT) to advise you about the Anti-Terrorism
Bill (No. 2) 2004, (Commonwealth) as introduced, which amends the Criminal Code
1995 (Commonwealth). The Senate passed the Bill with amendments on 13 August
2004. You have asked me whether this Bill if enacted as a law of the ACT Legislative
Assembly would contravene the interpretative principles of the Human Rights Act
2004 (ACT). My short advice is that such a law would contravene the Human Rights
Act in a number of significant ways, particularly the right to freedom of association.
My reasons are set out below.
Relevance of UN Security Council Resolution
Anti-terrorism measures have become major issues of concern globally. Recent
resolutions of the UN Security Council have been made for the purpose of securing
and maintaining international peace and security in accordance with the UN Charter.
The Anti-Terrorism Bill (No. 2) 2004 Bill addresses ‘association’ with terrorist
organisations, and goes much further than the term ‘supporting’ used in the UN
Security Council Resolution 1373.
Section 102.7 of the Criminal Code 1995, Commonwealth already has offences for
intentionally supporting a terrorist organisation (help directly or indirectly in
preparing, planning, assisting or fostering the doing of a terrorist act), with graded
penalties for actual knowledge that the organisation is a terrorist organisation
(imprisonment for 25 years) and recklessness (imprisonment for 15 years). It differs
from the proposed section 102.8 by having a causal link to a ‘terrorist act’. This UN
Anti-Terrorism Resolution of 2001 calls on States Parties to adopt wide-ranging
measures – in particular paragraph 2(e) requests that persons ‘supporting’ terrorist
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action be brought to justice and that ‘such terrorist acts are established as serious
criminal offences in domestic laws and regulations’.
Paragraph 6 of the UN Security Council Resolution 1456 of 2003 further states that
States Parties ‘must ensure that any measure taken to combat terrorism comply with
all their obligations under international law, and should adopt measures in accordance
with international law, in particular international human rights, refugee, and
humanitarian law’. I do not think that this explicit requirement is met in the Bill,
particularly in regard to the right to freedom of association.
New Offence of Association
The Bill makes it an offence to intentionally associate on two or more occasions with
a person who is a member, or who promotes or directs the activities of a known
terrorist organisation (including those listed under the Criminal Code Regulations
2002), where that association provides support that would help the terrorist
organisation to continue to exist or to expand. The new offence lacks precision in the
use of the term ‘associate’ - defined as ‘a person associates with another person if the
person meets or communicates with the other person’ and based on the notion of
consorting. It could result in violation of the right to liberty and security of the person
under section 18 of the Human Rights Act 2004 by enabling people to be arbitrarily
arrested and detained. The offence is subject to a penalty of 3 years’ imprisonment,
and is subject to existing anti-terrorism provisions that introduce a presumption
against bail and setting minimum non-parole periods. Strict liability applies in respect
of whether the organisation is a terrorist organisation - proposed subsection 102.8(1)
(inserted by Schedule 3 of the Bill into Division 102.8 of the Code). The Explanatory
Memorandum to the Bill notes that there are existing ancillary offences of aiding and
abetting, counselling or procuring the commission of an offence under the existing
section 11.2(1) of the Criminal Code 1995 (Commonwealth). The overly wide offence
with its narrow exceptions discussed below is in my opinion contrary to section 15 of
the Human Rights Act 2004, which provides that ‘everyone has the right to freedom of
association’.
Exceptions to Offence
The exceptions to this offence are overly narrow, and may infringe several rights
under the Human Rights Act 2004 (ACT). These exceptions are:
 association of ‘close family member’ and ‘relates only to a matter that could
reasonably be regarded (taking into account the person’s cultural background)
as a matter of family or domestic concern’,
 ‘public religious worship’,
 ‘provision of aid of a humanitarian nature’; and
 ‘providing legal advice or representation in criminal proceedings, or related
proceedings, or proceedings relating to whether the organisation in question is
a terrorist organisation’.
The term ‘humanitarian aid’ is not defined, and the Explanatory Memorandum is not
helpful in giving examples (as compared to the New Zealand law’s reasonable excuse
provision discussed below).
2
Freedom of expression
Subsection 102.8(6) also provides that the offence does not apply (with the evidential
burden on the defendant) ‘to the extent (if any) that it would infringe any
constitutional doctrine of implied freedom of political communication.’1 The
Explanatory Memorandum states that an example of a purely political communication
is the case of a journalist interviewing a terrorist for a documentary. This narrow
exception is not sufficiently clear under existing precedents to be in compliance with
the general right to freedom of expression under section 16 of the Human Rights Act
2004, ACT.
Freedom of religion
The exception being limited to ‘public’ as opposed to ‘private’ religious worship is
probably incompatible with section 14 of the Human Rights Act 2004, which provides
that
‘(1) Everyone has the right to freedom of thought, conscience and religion.
This right includes –
(a) the freedom to have or to adopt a religion or belief of his or her choice;
and
(b) the freedom to demonstrate his or her religion or belief in worship,
observance, practice and teaching, either individually or as part of a
community and whether in public or private.
(2) No-one may be coerced in a way that would limit his or her freedom to
have or adopt a religion or belief in worship, observance, practice or teaching.’
Due process and other rights
The narrowness of the exception for legal professionals means that any lawyer
representing or advising a client who is subject to this provision in respect of other
legal matters - for example private matters (such as family or property law) is also
liable under the Bill. Where a legal practitioner is aware of these provisions and
declines to give legal assistance, this could infringe the defendant’s due process rights
in non-terrorist or other proceedings under sections 8 (right to recognition and
equality before the law) and 18 (right to liberty and security) of the Human Rights Act
2004 (ACT) – for example challenging the lawfulness of civil detention on the
grounds of mental health.
Families
The term close family member is widely defined as spouse, de facto spouse, same sex
partner, parent, step-parent, grandparent, child, step child, grandchild, brother, sister,
step-brother, step-sister, guardian or carer. However, the exception for families being
contingent on ‘matters of family or domestic concern’ may contravene the right to
privacy under section 12 and the family’s right to protection under section 11 of the
Human Rights Act 2004, ACT.
Double jeopardy
Proposed subsection 102.8(7) protects against double jeopardy, and is in compliance
with section 25 of the Human Rights Act 2004 (ACT).
1
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 and Levy v Victoria (1997) 189
CLR 579.
3
Strict liability
Strict liability applies in respect of whether the person was aware that the organisation
is a terrorist organisation under proposed subsection 102.8(3), but there is a defence of
mistake of fact available under section 9.2 of the existing Criminal Code with the
evidential burden falling on the defendant – if it was a legal burden, further human
rights issues would arise.2
The relevant provisions of the Human Rights Act 2004 that need to be considered
include the right to the presumption of innocence, the rights to liberty and security
(section 18), a fair trial (section 21) and minimum guarantees in criminal proceedings,
such as not to testify (paragraph 22(2)(i)). Canadian case law on the issue of strict
liability is the most developed, but their constitutional rights regime is less analogous
to the ACT, NZ and the UK schemes because the Charter of Rights and Freedoms sets
a standard of fault which greatly limits the use of absolute liability where
imprisonment is a possible punishment.3 The regional European human rights regime
requires that strict liability offences or presumptions of law be ‘within reasonable
limits’, that is, proportional and rationally connected to the objective sought to being
achieved.4 This requirement is similar to section 28 provision in the Human Rights
Act 2004 (ACT) which is considered below.
Judicial Review
The existing decision-making power of the Federal Attorney-General to list terrorist
organisations is excluded from administrative law review, but would still be subject to
the High Court’s original jurisdiction to issue prerogative writs. If it were an ACT
provision, it would be similarly reviewable under the Supreme Court’s inherent
common law powers, and not violate the right to a fair trial under section 21 of the
Human Rights Act 2004 ACT: R (Alconbury Developments Ltd and Ors v Secretary of
State for the Environment, Transport and the Regions et al.5
Derogation or exceptions
The derogation provisions contained in article 4 of the International Covenant on
Civil and Political Rights in respect of some human rights in international law do not
apply to Australia at present, as a state of emergency has not been declared that
threatens the life of our nation (as has occurred in the UK).6
I am not satisfied that the Bill’s amendment to the Criminal Code would be able to
meet the proportionality test in section 28 of the Human Rights Act 2004 (ACT):
‘Human rights may be subject only to reasonable limits set by Territory laws that can
be demonstrably justified in a free and democratic society.’ This test has been
developed in the context of European regional human rights regime, national schemes
including Canada and the UK, and internationally in respect of the International
2
R v Lambert [2001] 3 WLR 206.
Re B.C. Motor Vehicle Act [1985] 2 SCR 486, R v Vaillancourt [1987] 2 SCR 636 and R v Wholesale
Travel Group Inc. [1991] 3 SCR 154.
4
Salabiaku v France (1988) 13 EHRR 379.
5
[2001] UKHL 23.
6
See also Human Right Committee, General Comment No. 29: States of Emergency (article 4) 31
August 2001 and ‘Paris Minimum Standards of Human Rights Norms in a State of Emergency’ (1985)
79 AJIL 1072.
3
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Covenant on Civil and Political Rights on which the Human Rights Act 2004 (ACT) is
based (known as the Siracusa Principles).7
As stated above terrorism is a matter of international concern and has been the subject
of UN debate. The former UN High Commissioner for Human Rights issued a
statement setting out criteria for protecting human rights in the context of
implementing anti-terrorism measures, and recommended that laws use precise
criteria and not confer unfettered executive discretion. These principles require that
restrictions be:
 prescribed by law (that is, they are not arbitrary);
 necessary for public security or public order (there is a pressing social need);
 not impair the essence of the right;
 necessary in a democratic society (they are a product of consensus);
 in conformance with the principle of proportionality (there is a balance
between the benefits expected from them on one hand, and on the other hand
their adverse consequences for the individual concerned, as well as the free
exercise in the right that is being restricted);
 appropriate to achieve that aim;
 the least intrusive means to achieve the aim of the measures;
 respectful of the principle of non-discrimination; and
 not arbitrarily applied.8
The requirements that there be a legitimate aim and a pressing social need in
restrictive laws are satisfied in the Bill by the cause of combating terrorism and
national security. The Bill has been developed in a democratic context and there was
broad consensus in the Australian Senate to pass the legislation. The vagueness of the
term ‘associate’, the breadth of discretion and narrowness of exceptions to the offence
are excessive and would probably fail the principle of legality because of the
arbitrariness of the Bill.9 There is a pressing social need to counter terrorism, but
including mere associates rather than supporters (as recommended by the UN Security
Council) is overly broad and not proportional to that need. Creating an offence of
association is not the least restrictive means of achieving the aim of suppressing
terrorism.
Senate Legal and Constitutional Affairs Committee Report
The Senate Legal and Constitutional Affairs Committee’s Report Provisions of the
Anti-Terrorism Bill 2004 found that the evidence provided did not persuade it of the
need for the association offence, given existing terrorism offences, and that it would
potentially capture ‘a wide range of legitimate activities, such as some social and
religious festivals and gatherings, investigative journalism, and the provision of legal
advice and representation.’10
7
The Siracusa Principles on the Limitations and Derogation Provisions in the International Covenant
on Civil and Political Rights, ECOSOC UN Doc. E/CN.4/1985/4, Annex.
8
UN Doc. E/CN.4/2002/18, Annex, 27 February 2002.
9
A v Australia, Human Rights Communication No. 560/1993, decision of 30 April 1997, UN Doc.
CCPR/C/59/D/560/1993.
10
Senate Legal and Constitutional Affairs Committee, Report: Provisions of the Anti-Terrorism Bill
2004, paras 3.113-114.
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Submissions to the Committee revealed many serious human rights issues. The
Human Rights and Equal Opportunity Commission stated that the proportionality test
was not satisfied because the offence was not defined with sufficient precision to
‘identify the nature and extent of the risk that the offence is intended to address...’ It
noted in contrast the specific examples of assistance in the US Patriot Act 2001,
including ‘the provision of financial services, weapons, expert advice, safe houses,
false documentation, or personnel’. Amnesty International Australia noted that the
definition of ‘member’ of a terrorist organisation is ‘too broad and vague…[which] is
then compounded by provisions to cover the act of associating with a member.’ The
Casten Centre for Human Rights Law noted that the Bill would even catch associates
who opposed terrorism ‘regardless of their views about, and their support for or
opposition to, political violence, terrorism or the violent or terrorist activities of any
organisation’. The Law Council of Australia noted that ‘association does not
necessarily need to relate to a specific act of terrorism or any other criminal act for
that matter…[T]he new laws have the potential to operate harshly and will unfairly
target members of minority groups, especially those of the Islamic faith.’ Dr Greg
Carne notes that the narrow exception for lawyers is not consistent with terms
enabling access to lawyers under the ASIO Act 1979 such as ‘contact’ and ‘permitted
disclosure’ and may undermines the role of legal representation as ‘a vital safeguard
against abuses of human rights’, in a variety of circumstances, such as foreign
proceedings or individual communications to UN human rights treaty monitoring
bodies.
Comparison to other national laws
I think it is interesting to compare this Bill with other democratic government’s
response to the threat of terrorism in order to measure whether Australia’s response is
proportionate. Section 12 of the Terrorism Act 2000 (UK) makes it an offence to
‘invite support’ for a proscribed organisation, or to arrange, manage or assist in
arranging or managing a meeting to which is known to support to further the activities
of a proscribed organisation. It also is an offence if it is known a person belonging to
or professing to belong to a proscribed organisation will address the meeting, as well
as to address meetings whose purpose it is to encourage support for or further the
activities of a proscribed organisation. These provisions were enacted before the UN
Security Council Resolution, and are subject to the Human Rights Act 1998 (UK).
The New Zealand Terrorism Suppression Act 2002 does not contain an association
offence, and specifically states in subsection 5(5) ‘to avoid doubt, the fact that a
person engages in any protest, advocacy, or dissent, or engages in any strike, lockout,
or other industrial action, is not by itself, a sufficient basis for inferring that the
person’ is engaging in specified terrorist acts. It has very specific offences for
supporting terrorism, such as participating in terrorist groups, harbouring or
concealing terrorists, knowingly dealing with terrorist property or making available
property, financial or related services without lawful or reasonable excuse (such as
giving items of food, clothing or medicine to satisfy essential human needs). Section
43 requires that financial institutions or other persons in possession or immediate
control of property that is reasonably suspected to be owned by terrorists must report
this to the Police, but not in the case of legal professional privileged information
(except under subsection 45(2) in relation to receipts, payments, income, expenditure
6
or financial transactions in trust accounts). I am not aware of any cases under the New
Zealand Bill of Rights 1990 that have challenged these anti-terrorism provisions.
Conclusion
The Anti-Terrorism (No. 2) Bill 2004 for the reasons set out above is inconsistent
with several provisions of the International Covenant on Civil and Political Rights,
which have been incorporated as principles of interpretation in the Human Rights Act
2004 (ACT). If a Bill in these terms were enacted in the ACT, I would recommend
extensive amendments to make it human rights compliant – the legitimate purpose of
protecting the community from terrorism can and has been achieved in other
jurisdictions with Bills of Rights, without needing to rely on such wide-ranging
discretions and powers in respect of association, in addition to support for, terrorist
organisations.
Yours sincerely,
Dr Helen Watchirs
Human Rights and Discrimination Commissioner
30 August 2004
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