Counter-Terrorism Laws in a Nation without a Bill
of Rights: The Australian Experience
Nicola McGarrity* and George Williams≠
Australia is unique amongst democratic nations in lacking a constitutional or even statutory Bill
of Rights at the national level. This has created significant challenges for Australia in the counterterrorism context, including that of shielding the community from terrorism while safeguarding
fundamental human rights. Australia’s lack of practical experience with terrorism and with counterterrorism law-making has further exacerbated this situation. This article seeks to analyse whether,
in the absence of a national Bill of Rights, the impact of counter-terrorism laws upon human
rights has been adequately considered in Australia. The role played by the Australian courts in
protecting human rights can, at best, be described as marginal. Therefore, this article focuses upon
the effectiveness of the parliamentary process as a forum for the assessment of counter-terrorism
laws on human rights grounds.
I. Introduction
In an address to the International Summit on ‘Democracy, Terrorism and Security’ in
March 2005, the then United Nations Secretary-General, Kofi Annan, stated:
Human rights law makes ample provision for strong counter-terrorist
action, even in the most exceptional circumstances. But compromising
human rights cannot serve the struggle against terrorism. On the contrary,
it facilitates achievement of the terrorist’s objective — by ceding to him
the moral high ground, and provoking tension, hatred and mistrust of
government among precisely those parts of the population where he is most
likely to find recruits.1
Director, Terrorism and Law Project, Gilbert + Tobin Centre of Public Law, University of New South Wales.
Anthony Mason Professor of Law and Foundation Director, Gilbert + Tobin Centre of Public Law, University
of New South Wales; Australian Research Council Laureate Fellow.
1
Kofi Annan, ‘A Global Strategy for Fighting Terrorism’ (Keynote Address to the Closing Plenary of the
International Summit on ‘Democracy, Terrorism and Security,’ held in Madrid on 10 March 2005).
*
≠
(2010) 2 City University of Hong Kong Law Review 45–66.
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This statement recognises that security is not an end in itself to be achieved regardless
of the extent of its impact on human rights. The prevention of terrorism, and the upholding
of human rights, must not be seen as antithetical. The 2004 International Commission of
Jurists (ICJ) Declaration on Upholding Human Rights and the Rule of Law in Combating
Terrorism reached the same conclusion in stating that ‘safeguarding persons from terrorist
acts and respecting human rights both form part of a seamless web of protection incumbent
upon the state.’2 Far from being a luxury that must be dispensed with at times of extreme
crisis, human rights may, in fact, be ‘an effective weapon in the defence of democratic
societies’ against terrorism.3
This article focuses on the Australian constitutional system, which is unique among
democratic nations in not having a national human rights law like a Bill of Rights. The
absence of such an instrument in Australia poses major challenges, including that of
shielding the community from terrorism while safeguarding fundamental liberties. This
article uses the example of Australian counter-terrorism laws to test whether, in the
absence of a Bill of Rights at the federal level, human rights have been given adequate
consideration by either the Australian courts or the Commonwealth parliament.
We first give, in Part II, an overview of the national counter-terrorism laws enacted
in Australia since 2002 and some of the human rights concerns about these legislation.
In Part III, we then examine the mechanisms that exist in Australia for protecting human
rights. The Australian Constitution (Constitution)4 only gives limited recognition to human
rights. This means that, without a Bill of Rights, the legislative process often provides
the only meaningful opportunity for assessing (or even simply raising concerns about)
counter-terrorism legislation on human rights grounds. The usefulness and potential of
this process is explored in Part IV of the article.
Our purpose of writing this article is not to discuss the entire body of Australian
counter-terrorism legislation. Instead, we focus upon several examples of counter-terrorism
laws with particular human rights problems. Through these examples — followed by an
analysis of the constitutional grounds on which legislation may be challenged in Australia
and the deficiencies in the legislative process — we seek to demonstrate the difficulties of
protecting human rights in a nation without a Bill of Rights.
II. Australia’s Counter-Terrorism Laws
On 11 September 2001, Australia did not have any specific counter-terrorism laws at
2
The Berlin Declaration on Upholding Human Rights and the Rule of Law in Combating Terrorism, adopted
28 August 2004, at the Biennial Conference of the International Commission of Jurists, ‘Human Rights and
Counter-Terrorism: Challenges and Responses,’ Berlin, 27–29 August 2004.
3
International Commission of Jurists (ICJ), Eminent Jurists Panel on Terrorism, Counter-Terrorism and
Human Rights, Assessing Damage, Urging Action (ICJ: Geneva 2009) 21.
The Australian Constitution is contained in the Commonwealth of Australia Constitution Act 1900
(Imperial).
4
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Counter-Terrorism Laws in a Nation without a Bill of Rights: The Australian Experience
47
the Commonwealth level.5 Politically-motivated violence was dealt with instead by the
criminal law. The absence of specific counter-terrorism laws was not surprising. Apart
from the 1978 bombing attack on the Commonwealth Heads of Government Regional
Meeting at the Sydney Hilton Hotel, terrorist attacks were virtually unknown in Australia.
However, the terrorist attacks in New York and Washington on 11 September 2001, as well
as subsequent attacks in Bali, Madrid and London, highlighted the possibility that terrorist
attacks might occur on home soil or target Australians overseas.
The Commonwealth government’s response was similar to that of many other countries.
It emphasised the need to introduce exceptional measures in order to prevent the threat
of terrorism. It was argued that the grave harm threatened by terrorism, and the focus
of terrorists on the disruption or even destruction of government institutions, meant that
we could not afford to wait and rely on general criminal law until terrorist acts had been
committed. Instead, terrorist acts must be prevented from occurring in the first place. With
the aim of prevention in mind, Australia has since 2002 enacted 44 counter-terrorism laws.6
These laws, among others, establish a definition of a ‘terrorist act’;7 criminalise a range
of conduct preparatory to the commission of a terrorist act;8 enable the proscription of
‘terrorist organisations’;9 create a range of status offences for membership and association
with a terrorist organisation;10 strengthen the powers of intelligence organisations to
engage in community surveillance; and, enable the detention or imposition of restrictions
and prohibitions on both suspects and non-suspects.11
Central to Australia’s counter-terrorism laws is the definition of a ‘terrorist act.’ Upon
this definition hinge the individual terrorism offences in division 101 of the Criminal Code
Act 1995 (Commonwealth) (Criminal Code), which criminalise acts preparatory to the
commission of a terrorist act, and the group terrorism offences in division 102. Section
100.1 of the Criminal Code defines a ‘terrorist act’ to be an action or threat of action done
with the intention of:
•
advancing a political, religious or ideological cause; and
•
coercing, or influencing by intimidation, the government of the Commonwealth,
a State, Territory or foreign country (or part of any of the aforementioned) or
intimidating the public (or a section of the public).12
5
For a history of terrorism laws in Australia, see J Hocking, Terror Laws: ASIO, Counter-Terrorism and the
Threat to Democracy (UNSW Press, Sydney 2004).
6
Based on personal calculation done by authors.
7
See discussion below.
8
Criminal Code Act 1995 (Commonwealth) div 101.
9
Ibid div 102 sub-div A.
10
Ibid ss 102.3 and 102.8.
11
See discussion below.
12
Criminal Code s 100.1(1).
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An act only becomes a ‘terrorist act’ if it causes a certain level of harm, e.g., serious
physical harm, death or serious risk to public health or safety. This definition was adapted
from the Terrorism Act of the United Kingdom.13 However, in contrast to the equivalent
definition under international law and in many other countries,14 it also encompasses serious
damage to property and serious interference with, serious disruption to or destruction of an
electronic system.15 The definition, however, establishes what does not constitute a ‘terrorist
act’, recognising exceptions for ‘advocacy, protest, dissent or industrial action.’16
The Australian definition is not free of problems. What some see as terrorism, others
regard as self-defence or a struggle for liberation. After all, Nobel Peace Prize winner
Nelson Mandela was called a terrorist by many people — including the then British
Prime Minister Margaret Thatcher17 — during his fight against apartheid in South Africa.
He would also be classified as a terrorist under Australian counter-terrorism law, as
no distinction is made between terrorism within and outside Australia and nor are any
allowances made for someone who causes harm as part of a struggle for liberation.
Two other problematic areas of Australia’s counter-terrorism laws from a human rights
perspective are the sedition offences in Section 80 of the Criminal Code and the ability
of the Australian Security Intelligence Organisation (ASIO) to question and even detain
non-suspects.
In Australia, freedom of speech has been a casualty of the ‘war on terror’. Many of
Australia’s counter-terrorism laws incidentally affect freedom of speech. For instance,
the individual and group terrorism offences criminalise behaviour that may involve
expression and attempts to influence political opinion. Similarly, restrictions may be
placed on communication under the control order regime in division 104 of the Criminal
Code. Many of the laws also have a direct impact on freedom of speech. For example, the
Anti-Terrorism Act [No. 2] 2005 (Commonwealth) (2005 Anti-Terrorism Act) introduced
an additional ground on which the Commonwealth Attorney-General may proscribe
an organisation, namely, if it ‘advocates’ the doing of a terrorist act. The definition of
‘advocates’ extends to the situation whereby an organisation ‘praises’ someone else’s
terrorist act and there is a mere ‘risk’ that such praise might lead another person (regardless
of his or her youth or mental capacity) to commit such an act.18 An example could be
where an organisation’s executive or membership praises past liberation struggles in East
Timor or against a colonial power. Whatever the merits or otherwise of these struggles, the
13
Terrorism Act 2000 (UK) s 1.
14
See, for example, the definition of a ‘terrorist act’ in Canada’s Criminal Code, RSC 1985, c C-46. This section
provides that property damage only amounts to a terrorist act if it is likely to cause death or serious bodily
injury to a person or a serious risk to the health or safety of the public.
15
Criminal Code s 100.1(2).
16
Ibid s 100.1(3).
17
K Livingstone, ‘Mandela’s Long Walk to a Plinth’ Guardian (London, 20 April 2007), <http://www.guardian.
co.uk/commentisfree/2007/apr/20/mandelastatue> accessed 20 June 2010.
18
Criminal Code s 102.1(1A).
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Counter-Terrorism Laws in a Nation without a Bill of Rights: The Australian Experience
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Australian law is a blunt instrument for dealing with sensitive matters about which people
may legitimately disagree.
Banning groups for their advocacy of terrorist acts is not only hazardous because it
affects what an organisation can say, but also because it affects people who did not actually
say the words. Even if some members of a group disagree with the praise expressed by
other members of the group, they can be jailed because of their association with the
group.19 Criminalising speech itself is troubling enough without also punishing people
who have not made a statement but who are simply members or supporters of the same
group. This is an extraordinary extension of the power of proscription and of criminal
liability since it collectively punishes members of groups for the speech of their associates
(which is obviously beyond their control).
The 2005 Anti-Terrorism Act also created a range of sedition offences punishable by up
to seven years’ imprisonment. These offences include situations where a person urges:
•
‘another person to overthrow by force or violence’ the Constitution, a State,
Territory or Commonwealth government20
•
‘another person to interfere by force or violence with lawful processes for an
election of a member or members of a House of Parliament’21
•
‘another person to engage in conduct’ with the intention that the conduct ‘assist an
organisation or country’ that ‘is engaged in armed hostilities against the Australian
Defence Force.’22
Whilst there is a ‘good faith’ defence in Section 80.3 of the Criminal Code, no specific
defences are given for many forms of communication, including academic or scientific
discussion, satire and comedy. It is unlikely that the sedition offences would be used
to restrict forms of communication such as these. However, the mere possibility
that the sedition offences could be used in this manner inevitably has a ‘chilling
effect’ upon freedom of speech. The Australian Law Reform Commission (ALRC), in
conducting an inquiry into the sedition offences in 2006, accepted this proposition.23
In order to minimise the effect of the sedition offences upon freedom of expression,
it recommended that the term ‘sedition’ should be removed from the statute book.24
Furthermore, it recommended that the intention elements of the offences should be
clarified25 and that, instead of a good faith defence, the court should be required to consider
19
Ibid s 102.8.
20
2005 Anti-Terrorism Act s 80.2(1).
21
Ibid s 80.2(3).
22
Ibid s 80.2(8).
23
Australian Law Reform Commission (ALRC), Fighting Words: A Review of Sedition Laws in Australia, ALRC
104 (Final Report) (2006).
24
Ibid rec 2-1.
25
Ibid rec 8-1.
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the nature of the communication in establishing whether there was an intention that force
or violence would occur.26
There are several legislative regimes in Australia that enable the pre-charge detention of
a suspect by the Australian Federal Police (AFP).27 These regimes have been criticised for
violating Article 9 of the International Covenant on Civil and Political Rights (ICCPR),28
which guarantees the right to liberty and security of person, freedom from arbitrary arrest
and detention, the right of a detained person to be promptly informed of the charges against
him or her and brought before a judicial officer. Of even more concern, however, are the
powers granted to ASIO by the Australian Security Intelligence Organisation Legislation
Amendment (Terrorism) Act 2003 (Commonwealth). There are two general concerns from
a human rights perspective about these powers. First, they give ASIO — an intelligence
(and not a law enforcement) agency — the ability to question for up to 24 hours and detain
for up to a week people for the purpose of intelligence gathering in relation to a terrorism
offence.29 Second, this can be applied to a non-suspect. This power is more extensive
than those powers granted to equivalent intelligence agencies in the United Kingdom,
Canada and the United States. Only Australian law allows for the detention in secret of
non-suspect citizens by an intelligence agency.30
A detained person must generally be permitted to contact a lawyer of his or her choice.
However, the entitlement of a detained person to contact a lawyer may be removed if it is
believed that a person involved in a terrorism offence may thus be alerted that the offence
is being investigated or that a record or thing that the person may be asked to produce
may be destroyed, damaged or altered.31 Furthermore, any contact between the person and
his or her lawyer ‘must be made in a way that can be monitored by a person exercising
authority under the warrant.’32 The lawyer must also not intervene in the questioning of
the detained person or address the prescribed authority during questioning, except to
request clarification of an ambiguous question.33 It is also an offence, carrying a term of
26
Ibid rec 12.
27
First, the preventative detention regime in division 105 of the Criminal Code Act enables the detention
of a suspect by the Australian Federal Police for up to 24 hours (with a possible extension of up to 48).
Complementary State and Territory legislation enables the detention of a person for up to 14 days. Second,
pre-charge detention and questioning by the Australian Federal Police under Part 1C of the Crimes Act 1914
(Commonwealth) for up to 20 hours (excluding any time designated as ‘dead time’). Finally, the control
order regime in division 104 of the Criminal Code Act may also be used to effectively place a person under
house arrest.
28
International Covenant on Civil and Political Rights, adopted 16 December 1966, entered into force 23
March 1976, 999 UNTS 171 (ICCPR).
Australian Security Intelligence Organisation Act 1979 (Commonwealth) (ASIO Act) Pt III div 3 sub-div
C.
29
See Andrew Lynch and George Williams, What Price Security? Taking Stock of Australia’s Anti-Terror Laws
(UNSW Press, Sydney 2006) 39–40.
30
ASIO Act (n 29) s 34ZO.
31
Ibid s 34ZQ(2).
32
33
Ibid s 34ZQ(6).
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Counter-Terrorism Laws in a Nation without a Bill of Rights: The Australian Experience
51
imprisonment of up to five years, to fail to answer questions or to give false or misleading
information in response to a question.34 It is no excuse that the information might tend to
incriminate the person.35
Finally, as with the sedition offences, the ASIO regime restricts freedom of speech.
Whilst a warrant is in force, it is an offence to disclose that a warrant has been issued or
a fact relating to the content of the warrant or to the questioning or detention of a person
in connection with the warrant.36 It is also an offence, for two years after the warrant
has expired, to disclose ‘operational information’ obtained through the exercise of the
warrant.37 These offences apply not only to the person who was questioned and detained,
but also to such persons as lawyers, family members and journalists seeking to report
on the use or misuse of the power. The penalty for committing one of these offences is
imprisonment for up to five years.
III. Protecting Human Rights through the Australian
Court System
A. The (Lack of) Recognition of Human Rights in the Australian
Constitution
When the British parliament enacted the Human Rights Act 1998, Australia became the
only democratic nation without a national statutory or constitutionally entrenched Bill of
Rights. Statutory Bills of Rights like the Human Rights Act have since been enacted in one
Australian State, Victoria,38 and one Territory, the Australian Capital Territory.39 There is,
however, still no Bill of Rights at the national level.40
34
Ibid s 34L.
35
Ibid s 34L(8). There is a direct use immunity which prohibits information given by a person during
questioning or the production of a record or thing by the person from being used against him or her in
criminal proceedings. There is, however, no derivative use immunity.
36
Ibid s 34ZS(1).
Ibid s 34ZS(2).
37
38
Charter of Human Rights and Responsibilities Act 2006 (Victoria).
39
Human Rights Act 2004 (Australian Capital Territory).
A National Human Rights Consultation was commissioned by the Commonwealth government on
10 December 2008. The consultation committee (chaired by Father Frank Brennan AO) reported to the
Commonwealth government on 30 September 2009, with the National Human Rights Consultation: Report
being released to the public on 8 October 2009. In the report, the committee recommended the enactment of
a statutory Bill of Rights at the national level (Recommendation 18). This recommendation has been rejected
by the Commonwealth government. The government instead proposes to: (a) establish a Joint Parliamentary
Committee on Human Rights, which will engage in scrutiny of Bills against the human rights set out in
the core United Nations human rights treaties; and (b) to require all new Bills and disallowable legislative
instruments introduced into the Commonwealth parliament to be accompanied by statements assessing
compatibility with those human rights. See Human Rights (Parliamentary Scrutiny) Bill 2010 and Human
Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010.
40
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The Australian Constitution was drafted at two conventions held in 1891 and 1897–98,
and then enacted for Australia by the British parliament. In Australian Capital Television
Pty Ltd v Commonwealth,41 Mason CJ noted the ‘prevailing sentiment of the framers that
there was no need to incorporate a comprehensive Bill of Rights in order to protect the
rights and freedoms of citizens. That sentiment was one of the unexpressed assumptions
on which the Constitution was drafted.’42 Chief Justice Mason’s statement reflects the
widely held view that the framers intended the human rights of the Australian people
to be protected by the common law and the good sense of elected representatives (as
constrained by the Westminster system of responsible government). This view assumes,
however, that the framers debated how best to protect human rights. In fact, the framers
did not debate whether the Constitution should contain a comprehensive Bill of Rights.
Instead, the Constitution was designed as a compact between the colonies — as opposed
to being a ‘peoples’ constitution’ — and the focus of the framers was on issues such as
defence, nationhood and free trade. According to Lois O’Donoghue, a former Chairperson
of the Aboriginal and Torres Strait Islander Commission, the Constitution as drafted:
... says very little about what it is to be Australian. It says practically nothing
about how we find ourselves here — save being an amalgamation of former
colonies. It says nothing of how we should behave towards each other as
human beings and as Australians.43
To the extent that human rights were taken into account by the framers, a central
concern was to maintain existing race based distinctions. A majority of the constitution
framers considered, for example, that a clause that conferred ‘equal protection of the
laws’ was undesirable because it might protect ‘Chinamen, Japanese, Hindoos, and other
barbarians’ in areas such as employment.44 The racially discriminatory origins of the
Constitution remain evident in Section 25, which recognises that the States can disqualify
people from voting because of their race, and Section 51(xxvi), which provides that the
Commonwealth parliament may legislate with respect to the ‘people of any race for whom
it is deemed necessary to make special laws.’45
(1992) 177 CLR 106.
41
Ibid 136.
42
Frank Brennan, Securing a Bountiful Place for Aborigines and Torres Strait Islanders in a Modern, Free and
Tolerant Australia (Constitutional Centenary Foundation, Carlton 1994) 18.
43
Official Record of the Debates of the Australasian Federal Convention: 1891–1898, vol 5 (Legal Books, Melbourne
1898) 1986, 1784 (Dr Quick). See also 1752, where Dr Quick refers to ‘people of any undesirable race or of
undesirable antecedents.’
44
Prior to 1967, this section included the following phrase: ‘other than the aboriginal race in any State.’ This
phrase was deleted by referendum in 1967. Significantly, whilst the intention of voters in 1967 was to enable
the Commonwealth parliament to make laws benefiting the aboriginal people, it appears that the Section
51(xxvi) may also enable the Commonwealth parliament to make laws which disadvantage Aboriginal
people. See Kartinyeri v Commonwealth (1998) 195 CLR 337.
45
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Counter-Terrorism Laws in a Nation without a Bill of Rights: The Australian Experience
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The Constitution does contain a few, scattered express rights. However, the narrow
drafting of these provisions and their constrained interpretation by the High Court
of Australia has meant that they have had minimal (if any) effect.46 For example, the
requirement in Section 80 of the Constitution that ‘[t]he trial on indictment of any offence
against any law of the Commonwealth shall be by jury’ has been interpreted by the High
Court as conferring on the Commonwealth parliament the power to itself determine what
offences shall be ‘on indictment’, and thus subject to a jury trial.47 Similarly, Section 41,
which might seem to confer a substantive ‘right to vote’,48 has been interpreted as applying
only to people who had a right to vote in State elections as at 12 June 1902 and the High
Court has noted that the ‘practical effect of [Section] 41 is now spent.’49
The most significant constitutional development for the protection of human rights in
Australia has been the implication of rights by the High Court from the text and structure
of the Constitution. In 1992, the High Court discovered in the Constitution a freedom to
discuss matters relating to Australian government, and used this freedom to strike down
sections of the Political Broadcasts and Political Disclosures Act 1991 (Commonwealth)
which limited political advertising on radio and television during election periods.50
Furthermore, Chapter III of the Constitution, which establishes and defines ‘federal
judicial power’ and creates a strict separation of judicial from legislative and executive
powers, has been recognised by the High Court as the source of a number of procedural
rights.51 In Polyukhovich v Commonwealth,52 six of the seven members of the High Court
held that the Commonwealth parliament was constitutionally prohibited from enacting a
Bill of Attainder. It was found that a declaration of the guilt of a particular person or class
of persons by the Commonwealth parliament would constitute an improper exercise by
the parliament of judicial power. In the same case, however, the limits of the separation of
powers for the implication of rights were also demonstrated. The High Court was unable to
reach a consensus as to whether the Australian Constitution prohibits the Commonwealth
parliament from making retrospective criminal laws. To date, the High Court has stopped
short of implying substantive rights from the separation of powers provision.53 For example,
See generally George Williams, Human Rights under the Australian Constitution (OUP, Melbourne 1999).
46
See, for example, R v Bernasconi (1915) 19 CLR 629, 637.
47
Section 41 provides: ‘No adult person who has or acquires a right to vote at elections for the more
numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the
Commonwealth from voting at elections for either House of the Parliament of the Commonwealth.’
48
Snowdon v Dondas (1996) 188 CLR 48, 71–72 (Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ).
See also Anne Twomey, ‘The Federal Constitutional Right to Vote in Australia’ (2000) 28 Federal Law Review
125.
49
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106.
50
In Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 580, Deane J suggested that the separation of judicial from
legislative and executive power effected by the Constitution is ‘the Constitution’s only general guarantee of
due process.’
51
(1991) 172 CLR 106.
52
See Michael McHugh, ‘Does Chapter III of the Constitution Protect Substantive as Well as Procedural
Rights?’ (2001) 21 Australian Bar Review 235.
53
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in Kruger v Commonwealth,54 five members of the High Court rejected the existence of an
implied guarantee of general legal equality in the Australian Constitution.55
B. Challenging Counter-Terrorism Legislation in the Australian Courts
Critical to human rights protection and enforcement is the existence of an independent and
impartial court with the ability to hold legislators to account for ignoring or misapplying
human rights principles.56 However, the absence of a Bill of Rights in Australia means
that there is only rarely a role for Australian judges in assessing new terrorism laws, and
even then usually not on human rights grounds. Courts might only be called upon, for
example, to assess as part of the federal division of power whether a counter-terrorism
law falls within any of the limited subject-matters on which the Constitution permits the
Commonwealth parliament to make laws (such as with respect to ‘the naval and military
defence of the Commonwealth’ in Section 51(vi)).57
The only role for judges in protecting rights in Australia is usually at the margins of
the debate. The courts have developed the common law rules regarding the interpretation
of legislation so that the infringement of human rights is minimised. According to Mason
CJ and Brennan, Gaudron and McHugh JJ in Coco v The Queen:58
The courts should not impute to the legislature an intention to interfere
with fundamental rights. Such an intention must be clearly manifested by
unmistakeable and unambiguous language.59
Hence, ‘a statute or statutory instrument which purports to impair a right to personal
liberty is interpreted, if possible, so as to respect that right.’60 The weakness of this method
of judicial review in protecting human rights is obvious. The Commonwealth parliament
may legislate to abrogate any human right if it merely states its intention to do so ‘by
unmistakeable and unambiguous language.’ There is no mechanism through which to
analyse whether such abrogation is appropriate.
(1997) 190 CLR 1.
54
Kruger v Commonwealth (1997) 190 CLR 1 44–45 (Brennan CJ), 63–68 (Dawson J, with whom McHugh J
agreed at 142), 112–113 (Gaudron J), 153–155 (Gummow J).
55
ICCPR (n 28) art 2(3).
56
The Commonwealth does not have a general power to legislate with respect to ‘crime’. However, the
Commonwealth’s power to enact key parts of Australia’s counter-terrorism legislation was put beyond doubt
when the States referred their power over this subject-matter to the Commonwealth parliament under section
51(xxxvii) of the Constitution.
57
(1994) 179 CLR 427.
58
Ibid 437.
59
Re Bolton; Ex parte Beane (1987) 162 CLR 514, 523 (Brennan J).
60
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Counter-Terrorism Laws in a Nation without a Bill of Rights: The Australian Experience
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The ‘rule of law’ has also been recognised by the High Court to be an ‘assumption’
underpinning the Commonwealth Constitution.61 In Australia, the rule of law is given
expression through the judicial review of government action. The High Court’s decision
in Australian Communist Party v Commonwealth62 (Communist Party case) demonstrates
that whilst the effect of courts applying the rule of law in particular cases may be to
protect human rights, there remains limited scope in Australia for the direct application
of human rights to invalidate legislation. This case concerned legislation enacted by the
Commonwealth parliament as part of its strategy for eliminating communism in Australia.
The recitals to the Communist Party Dissolution Act 1950 (Commonwealth) (Dissolution
Act) provided that the Act was ‘necessary, for the security and defence of Australia and for
the execution and maintenance of the Constitution and of the laws of the Commonwealth.’63
The Act:
•
declared the Australian Communist Party to be an unlawful association;64
•
enabled the Governor-General to declare other organisations whose, in his or her
opinion, ‘continued existence... would be prejudicial to the security and defence
of the Commonwealth or to the execution or maintenance of the Constitution or of
the laws of the Commonwealth;’65 and
•
applying a similar test, enabled the Governor-General to declare any person to be
a ‘Communist.’66
Such declarations resulted in the dissolution of an organisation and prohibited a
person from holding office in the Commonwealth public service or industries declared
by the Governor-General to be vital to the security and defence of Australia.
The High Court held (with Latham CJ dissenting) that the Dissolution Act was invalid
in its entirety. However, the finding of invalidity did not depend upon the Act having
breached any constitutional guarantee protective of human rights. Instead, the High Court
found that the Dissolution Act did not fall within any of the heads of Commonwealth
legislative power. In particular, the High Court refused to accept the statement in the
recitals that it fell within the defence power because it was necessary for ‘the security
and defence of Australia.’ It reached this conclusion because Sections 5 and 9 of the Act
imposed ‘legal consequences on a legislative or executive opinion which itself supplies
the only link between the power and the legal consequences of the opinion.’67 The attempt
by the Commonwealth parliament in these sections to determine the scope of its own
Australian Communist Party v The Commonwealth (1951) 83 CLR 1, 193 (Dixon J).Ibid.
61
Ibid.
62
Communist Party Dissolution Act 1950 (Commonwealth) Recital 9.
63
Ibid s 4.
64
Ibid s 5.
65
Ibid s 9.
66
See Australian Communist Party v Commonwealth (n 61) 261 (Fullagar J).
67
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legislative power — by enabling the Governor-General to decide what organisations or
persons were ‘prejudicial to the security or defence of the Commonwealth’ — breached
the maxim that ‘a stream cannot rise higher than its source.’68 In other words, it is for the
courts rather than the Commonwealth parliament to determine the scope of the latter’s
legislative powers under the Constitution.
The Communist Party case reflects the importance for the protection of rights of a legal
culture based upon the rule of law and enforced by an independent judiciary. However,
it also demonstrates the limitations of relying only upon the structural features of the
Constitution — for example, limitations derived from federalism or the separation of judicial
powers — to protect human rights. In many cases, there may simply be no constitutional
remedy for the violation of human rights, such as discrimination on the basis of race or
sex. Furthermore, even where legislation that violates human rights is challenged, the
case is rarely litigated or adjudicated upon within a human rights framework. Instead,
complainants are forced to rely upon the structural features of the Constitution to argue
their case. This can transform concerns over human rights in Australia into debate about
the respective powers of the Commonwealth and the States or about whether the courts
are being asked to exercise ‘judicial’ power, leaving little or no room for concepts that are
central to an effective human rights discourse.
The constitutional challenge to Australia’s control order regime in Thomas v Mowbray69
(Thomas) most clearly highlights these deficiencies. Division 104 of the Criminal Code
empowers the AFP to seek an order imposing restrictions, prohibitions and/or obligations
upon an individual (for example, that he or she may not communicate with certain people
or must reside at a particular address). Such an order may be made if an ‘issuing court’ is
satisfied, on the balance of probabilities, that the control order would substantially assist
in preventing a terrorist act or that the subject of the control order provided training to
or received training from a terrorist organisation.70 Control orders (as with preventative
detention orders) are highly problematic:
They illustrate the tension in employing the law as a tool of preventative
policy. They challenge the traditional purpose of legal regulation. Under
neither order is there a need for a person to have been found guilty of,
or even be suspected of committing, a crime. Yet both orders enable
significant restrictions on individual liberty. This is more than a breach of
the old ‘innocent until proven guilty’ maxim: it ignores the notion of guilt
altogether.71
However, Thomas was not argued before the High Court on the basis that the control
order regime violated human rights. It was argued that: (a) the legislation did not fall
Ibid 258 (Fullagar J).
68
(2007) 233 CLR 307.
69
Criminal Code Act s 101.4(1).
70
Lynch and Williams (n 30) 42.
71
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within the scope of the defence power, external affairs power or implied nationhood power
in the Constitution; and (b) the conferral of a power upon judicial officers to issue control
orders violated Chapter III of the Constitution (either because it is a non-judicial power
or, if the power is judicial, the legislation authorises the exercise of that power in a manner
contrary to Chapter III). It, therefore, came as no surprise that human rights were not
given a prominent place in any of the five separate judgments of the majority, which
rejected both of the complainant’s arguments. Comments made by Gleeson CJ in relation
to (b) above demonstrate a perception on the part of the majority that human rights were
principally the domain of the legislative and executive branches of government:
An argument, as a matter of policy, that legislation for anti-terrorist control
orders ought to be subject to some qualification in aid of the human rights
of people potentially subject to such orders is one thing. An argument that
the making of such orders should be regarded as totally excluded from the
judicial function is another.72
No other member of the majority made any reference to human rights in their
judgment. By contrast, the dissenting judgment of Kirby J is remarkable for its
willingness to take human rights (and international law) into account:
The Australian Constitution should be read, so far as the text allows, in a
way that is harmonious with the universal principles of the international law
of human rights and not destructive of them.73
His Honour found that the control order regime was invalid because it ‘directly
encroaches upon rights and freedoms belonging to all people both by the common law of
Australia and under international law.’74
The High Court (in addition to giving little consideration to human rights) deferred to
the executive’s assessment of the level of the threat posed by terrorism and what action
is necessary to prevent terrorism. This is important because the scope of the defence
power is not fixed — it ‘waxes and wanes’ according to the nature of the threat to
Australia at any particular time.75 The Commonwealth submitted to the court that there
were nine ‘factors’ which, taken together, demonstrated something ‘new and evil which
Australia has to defend [itself] against.’76 These factors included: the ready availability of
explosive substances, the dependency of Australia on certain types of infrastructure and
the importance that it places on ‘iconic structures’, the particular vulnerability of public
transport (especially trains) to attack, and the growth of fanatical ideological movements
which compass the destruction of Western civilisation. Callinan J described these factors
as ‘blindingly obvious’, and his Honour further noted that they ‘render attempts to draw
Thomas v Mowbray (n 69) [17].
72
Ibid [382].
73
Ibid [208].
74
Ibid [236].
75
Ibid [253] (Kirby J).
76
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analogies with historical atrocities, as grave and frightening to their contemporary targets
as they may have been, unconvincing.’77
The final point that must be noted about the decision in Thomas is the dismissive attitude
shown by the majority judges towards the High Court’s decision in the Communist Party
case. One recurring theme in the majority judgments in Thomas was an attempt to narrow the
principle upon which the Communist Party case was decided. During questioning of counsel
for the Commonwealth, Gleeson CJ stated that ‘[t]he Communist Party case did not decide
that the government could not protect the country against communism. The Communist
Party case was a decision about facts ... About evidence.’78 The dismissive attitude of the
majority is most clearly apparent in the decision of Callinan J. His Honour observed in
relation to the evidence in Thomas that there was ‘an abundance of uncontradicted, cogent,
factual and notorious matter, having the character of constitutional and other facts upon
which this Court may and should act.’79 By contrast, in the Communist Party case ‘the
Commonwealth sought to rely... factually solely on the allegations made in the preamble
to the [Act].’80 He concluded from this that the ‘particular principle, properly identified and
understood,’ for which the Communist Party case stands is simply that ‘it is for the courts,
and not the parliament to have the final say on whether legislation is within constitutional
power or not.’81 Justice Kirby, in dissent, was scathing of comments such as these:
I did not expect that, during my service, I would see the Communist Party
case sidelined, minimised, doubted and even criticised and denigrated in this
Court. Given the reasoning expressed by the majority in these proceedings,
it appears likely that, had the Dissolution Act of 1950 been challenged today,
its constitutional validity would have been upheld. This is further evidence
of the unfortunate surrender of the present Court to demands for more and
more governmental powers, federal and state, that exceed or offend the
constitutional text and its abiding values.82
IV. Enacting Counter-Terrorism Laws
The absence of a Bill of Rights at the federal level means that the opportunities for the
Australian courts to assess legislation on human rights grounds are extremely limited.
The only real opportunity for such an assessment may, therefore, be during debate on
legislation in the parliament. Of course, in Australia, the extent to which human rights
are considered when enacting legislation is up to the legislators themselves. This is, once
again, a consequence of the absence of a Bill of Rights in Australia. Even a statutory
(as opposed to a constitutionally entrenched) Bill of Rights would have a very positive
Ibid [544].
77
Transcripts of Proceedings, Thomas v Mowbray (High Court of Australia, Gleeson CJ, 20 February 2007).
78
Thomas v Mowbray (n 69) [533].
79
Ibid.
80
Ibid [584].
81
Ibid [386].
82
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effect upon the consideration of human rights by the Commonwealth parliament.83 This is
because it is likely to require the parliament to issue a statement of compatibility with the
human rights set out in the Bill of Rights in respect of each draft law.84
Unfortunately, relying upon legislators to exercise restraint on human rights grounds
in the counter-terrorism context is particularly problematic in a country with a democratic
system of government like Australia. This is because the driving force for legislative
action is generally public opinion. In the atmosphere of hysteria that can emerge in the
aftermath of a terrorist attack, the public can often place seemingly irresistible pressure on
legislators for protection from actual as well as irrationally perceived threats.
Comments made by Philip Thomas in relation to law-making in the United Kingdom
and the United States after the 11 September 2001 terrorist attacks on Washington and
New York are also apposite to describe the experience in Australia:
[There was] an unseemly scramble amongst the legislature so that it is seen to be
doing ‘something.’ The law is hastily tightened, with scant recourse to reasoned
chamber debate or recognition of standard procedures, in order to respond to
media and public outcry. Thus, the politicians’ anxiety to be viewed as resolving
the crisis overrides both established process and rational action.85
Before we go on to consider how this ‘unseemly scramble’ played out in the Australian
context, it is important to understand some basic facts about the Australian political system.
First, Australia has, at the Commonwealth level,86 a bicameral parliament consisting of
the House of Representatives and the Senate. The Commonwealth government is formed
by whichever political party or coalition has a majority of the seats in the House of
Representatives. The Senate, Australia’s ‘house of review’, acts as a safeguard to ensure that
the Commonwealth government cannot simply enact whatever legislation it chooses.87
There are, of course, those who would argue that the existence of a Bill of Rights would not have had
a significant impact upon the Australian debate about the legislative response to terrorism. See, e.g., Joo
Cheong Tham and Keith Ewing, ‘Limitations of a Charter of Rights in the Age of Counter-Terrorism’ (2007)
31 Melbourne University Law Review 462.
83
This is the model which has been adopted in only two Australian jurisdictions to establish a statutory Bill
of Rights: Human RightsAct 2004 (Australian Capital Territory) s 37 and Charter of Human Rights and
Responsibilities Act 2006 (Victoria) s 28. As pointed out in note 40, the Commonwealth government has
introduced legislation into the Commonwealth parliament which would require each Bill to be accompanied
by a statement of compatibility.
84
Philip Thomas, ‘Legislative responses to terrorism,’ Guardian (London, 11 September 2002) <http://www.
guardian.co.uk/world/2002/sep/11/september11.usa11> accessed 2 February 2010.
85
The Australian federation has nine parliaments in total. The Commonwealth parliament and one in each of
the six states and the two national territories.
86
All legislation must be passed by both houses of the Commonwealth parliament — the House of Representatives
and the Senate. The Senate’s law-making powers are equal to those of the House of Representatives except
that it cannot introduce or amend proposed laws that authorise expenditure for the ordinary annual services
of the government or that impose taxation. The Senate consists of 76 senators, who are elected according
to the proportional system of voting. Proportional representation makes it easier for independents and the
candidates of smaller parties to be elected, and means that the government party usually does not have a
majority of votes in the Senate and the non-government senators are able to use their combined voting power
to reject or amend government legislation.
87
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Second, there have been several distinct shifts in political power at the Commonwealth
level since the 11 September 2001 terrorist attacks. The Commonwealth government as
at 11 September 2001 was formed by the Coalition parties (the Liberal Party, Australian
National Party and Country Liberal Power), with John Howard as Prime Minister (the
Howard government). The Australian Labor Party was in opposition, and the Senate was
controlled by a number of small independent parties. From June 2005 (as a result of the
October 2004 Commonwealth election), the Coalition parties gained a majority of seats
not only in the House of Representatives but also in the Senate. This undoubtedly resulted
in a considerable shift in power to the Coalition parties. At the most recent election in
November 2007, the Coalition parties were voted out of government. The Commonwealth
government was instead formed by the Australian Labour Party, with Kevin Rudd as Prime
Minister. Within the government, Rudd was replaced as Prime Minister by Julia Gillard
in mid 2010. No counter-terrorism legislation has been passed by the Rudd or Gillard
governments with the exception of the Independent National Security Legislation Monitor
Act 2010. That law creates a new office to report on the operation and effectiveness of
Australia’s regime of counter-terrorism legislation.
In many instances, counter-terrorism legislation was rushed through the Commonwealth
parliament by the Howard government without the necessary scrutiny of the extent to
which it affected human rights. This was particularly so during the period from June 2005
to November 2007 when the Howard government controlled the Senate. For example, the
Anti-Terrorism Bill [No. 2] 2005 (Commonwealth) (2005 Anti-Terrorism Bill), which
created the sedition offences in Section 80 of the Criminal Code and also established the
control order and preventative detention regimes, was rushed through both Houses of the
Commonwealth parliament after debate lasting only a matter of a few hours in total.88
The rushed enactment of the 2005 Anti-Terrorism Act should be compared against
two examples of counter-terrorism law-making prior to June 2005. The very first
package of Australian counter-terrorism legislation, which included matters such as the
new definition of ‘terrorist act’, was introduced into the Commonwealth parliament at
8:00 pm on 12 March 2002. Simon Crean MP, the then leader of the Opposition, noted
that the draft legislation constituted ‘over 100 pages of legislation and over 100 pages
of explanatory memoranda.’89 Nevertheless, debate on this legislation commenced in
the House of Representatives at 12:00 pm on the day after its introduction and it was
passed about six hours later. The rushed passage through the House of Representatives
stands in stark contrast to the considered debate on this Bill in the Senate. Similarly, the
Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill
2002, which was introduced into the Commonwealth parliament on 21 March 2002, was
not passed by the Commonwealth parliament until 15 months later, after the scrutiny of
two parliamentary committees and the making of substantial amendments to the Bill.
Greg Carne, ‘Hasten Slowly: Urgency, Discretion and Review — A Counter-Terrorism Legislative Agenda
and Legacy’ (2008) 13:2 Deakin Law Review 49, 71–72.
88
Parliament of Australia, House of Representatives, Hansard (13 March 2002) 1143 (Simon Crean MP).
89
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A notorious example of the ‘paradigm of urgency’90 in which much of Australia’s
counter-terrorism legislation has been enacted was the recall of the Senate to consider
the 2005 Anti-Terrorism Bill (the content of which is discussed below). On 2 November
2005, the day of Australia’s most famous horse race, the Melbourne Cup, the then Prime
Minister John Howard released a media statement announcing that the Bill would be
introduced into, and passed by, the House of Representatives that very day.91 The Senate
would be recalled for 3:00 pm the following day (3 November 2005) to debate the Bill.
The government justified this extraordinary action with the following vague language:
The Government has received specific intelligence and police information
this week which gives cause for serious concern about a potential terrorist
threat. ... The Government is satisfied on the advice provided to it that
the immediate passage of this bill would strengthen the capacity of law
enforcement agencies to effectively respond to this threat.92
This statement evidences the point made by Simon Bronitt and James Stellios that
‘[t]he most damaging aspect of the post-September 11 public policy environment is the
tendency to link the vulnerability to attack to a presumed inadequacy of existing powers
and criminal laws, rather than to the capacity of both intelligence and law enforcement
agencies.’93 The Bill provided that, in a prosecution for a terrorism offence, it is not
necessary to identify a particular terrorist act. It is sufficient for the prosecution to prove
that the particular conduct was related to ‘a’ terrorist act.
In order to ensure the swift enactment of legislation, the Howard government
frequently adopted a ‘back to front’ process of law-making. Rather than giving
detailed consideration to the terms of the legislation during pre-enactment debate in the
Commonwealth parliament — in particular, to ensure legislation had the least intrusive
effect on human rights and would be effective to fulfil its purpose — the government
promised to commission post-enactment reviews of legislation to determine whether
any amendments should be made. For example, the 2005 Anti-Terrorism Bill (as
enacted) was far from acceptable to many politicians and members of the public, and
clearly more time was needed for the legislation to be scrutinised and drafted more
carefully. Nevertheless, the Commonwealth parliament passed the Bill after the Howard
government committed to a post-enactment review of the legislation by the ALRC.94
This is clearly an unsatisfactory process of law-making. Not only does it undermine the
democratic process in the Commonwealth parliament, which relies upon rigorous debate
Carne (n 88) 49.
90
Statement by The Hon John Howard MP, Prime Minister of Australia, ‘Anti-Terrorism Bill’ (Media Release,
2 November 2005).
91
Ibid.
92
Simon Bronitt and James Stellios, ‘Sedition, Security and Human Rights: “Unbalanced” Law Reform in the
“War on Terror”’ (2006) 30 Melbourne University Law Review 923, 957.
93
Lynch and Williams (n 30) 68–69.
94
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between political parties to ensure that legislation is passed in the form that best serves the
public interest, but it is critical that any derogation from the rule of law or human rights is
no more than is ‘strictly required by the exigencies of the situation’.95 It is inappropriate to
leave a careful consideration as to what the ‘exigencies of the situation’ require until after
a law has been enacted.
In some cases, the inclusion of a sunset clause — that is, a provision which repeals
some or all other provisions after a specific date — in legislation provided some
reassurance that the continuing necessity for the extraordinary measures contained in
that legislation would be periodically reviewed. Unfortunately, there have been notable
instances in which such a clause has been extended as a matter of course. For example,
the Australian Security Intelligence Organisation Legislation Amendment (Terrorism)
Act 2003 (Commonwealth), which established the ASIO’s questioning and detention
regime, originally included a three year sunset clause. In 2006, however, the Australian
Security Intelligence Organisation Amendment Act (Commonwealth) was enacted
to continue the powers for a further ten years. The existence of a time limit on the
operation of the questioning and detention regime — albeit one as far into the future
as ten years — appears to have been used as a justification for the subsequent failure
to undertake a review of this regime. In August 2009, the Rudd government released
a 450 page National Security Legislation Discussion Paper (Discussion Paper), which
represented the Rudd government’s response to a range of parliamentary and independent
inquiries initiated by the Howard government in 2006 and 2007.96 The vast majority
of the proposals in the Discussion Paper were incorporated into the National Security
Legislation Amendment Bill 2010 introduced into the Commonwealth parliament in
March 2010.97 It was striking, given the Rudd government’s claim that its response was
‘comprehensive,’ that neither the Discussion Paper nor the Bill contained any mention
of the ASIO questioning and detention regime.
As noted by Andrew Lynch, the language employed by the Howard government in
enacting counter-terrorism laws demonstrates ‘an unwillingness to see the legislative
process as something beyond merely a political obstacle course.’98 This government
typically responded to calls by the opposition for draft legislation to be referred to
parliamentary committees (such as the Senate Legal and Constitutional Affairs Committee)
for detailed consideration with accusations that the opposition was ‘un-Australian’. It
decried the opposition for its use of the counter-terrorism laws as a political tool, stating,
ICCPR (n 28) art 4. For a detailed analysis, see Christopher Michaelsen, ‘The Proportionality Principle,
Counter-Terrorism Laws and Human Rights: A German-Australian Comparison’ (2010) 2 CityU LR 19.
95
Attorney-General’s Department, National Security Legislation Discussion Paper (August 2009).
This regime was, however, one of main focuses of the Anti-Terrorism Law Reform Bill 2009 introduced by
the Australian Greens.
96
This Bill was reviewed by the Senate Legal and Constitutional Affairs Committee, which made several
recommednations in its report submitted on 17 June 2010.
97
Andrew Lynch, ‘Legislating with Urgency — The Enactment of the Anti-Terrorism Act [No. 1] 2005 (Cth)’
(2006) 30 Melbourne University Law Review 747, 778.
98
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for example, that ‘the opposition chose politics over community safety in rejecting a Bill
that has become a test of commitment to the security of the nation.’99 It is undoubtable that
the threat of being characterised in such politically unpopular terms as this had an adverse
effect on the strength of the political debate regarding, and the rigorousness of the scrutiny
of, counter-terrorism legislation in the Commonwealth parliament.
Political parties and individuals who expressed concerns regarding the human rights
implication of legislation were attacked in particularly strong terns. In 2006, Sophie
Mirabella MP, stated:
Only the Australian Greens and the tiresome civil libertarians would put
their distorted view of human rights ahead of justice for the victims of
terrorists. Only they would try to turn into victims people who willingly and
ably volunteered to main and kill innocent civilians.100
Statements like these create an image of human rights and the achievement of security
as being in competition with each other, and inevitably results in a preferring of the latter
over the former. This sidelining of human rights is a particularly dangerous trend in public
debate. The ordinary mechanisms of political accountability in Australia — accountability
of the executive branch of government to the Commonwealth parliament and ultimately to
the people — can break down where questions of national security and, more generally,
law and order are concerned. Given this, it is particularly important that legislators take
responsibility for ensuring that human rights are at the forefront of legislative debate.
Statements like Mirabella’s above not only ignore this responsibility but, by portraying
human rights advocates as the ‘enemy’ of public security, they go so far as to deny that
arguments based on human rights even have a legitimate place in the debate. As noted by
David Brown:
One consequence is the tendency to side-line, by-pass or ignore official law
reform reports as unresponsive to political imperatives requiring instant
responses to media legitimation crises around particular cases. Another
possible consequence is the extent to which law reform commissions and
their work may lose credibility and authority in the face of a more general
anti-elites movement, expressing the risk of a public voice challenging
traditional forms of expert discourse.101
This sidelining of human rights reflects a general trend in law-making world-wide.
Goold and Lazarus note that where ‘constitutional and international human rights once
claimed a privileged moral status, their limitation always requiring justification; … claims
Anthony Reilly, ‘The Processes and Consequences of Counter-Terrorism Law in Australia: 2001–2005’
(2007) 10 Flinders Journal of Law Reform 81, 92–94.
99
Parliament of Australia, House of Representatives, Hansard (11 September 2006) 66 (Sophie Mirabella
MP).
100
David Brown, ‘Challenges to Criminal Justice Reform’ in Brian Opeskin and David Weisbrot (eds), The
Promise of Law Reform (The Federation Press, Sydney 2005) 356.
101
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to security now appear to receive less scrutiny than the assertion of rights that may restrict
measures in its pursuit’.102 This has resulted in opponents of the counter-terrorism laws
adopting a new strategy. Rather than emphasising the human rights implications of the
laws, they instead focus upon their ineffectiveness in preventing or responding to the
threat of terrorism.
The Rudd government’s Discussion Paper marked a significant step away from the
process of enacting counter-terrorism legislation under the prior Howard government. In
stark contrast to the lack of transparency characterising this process,103 the Discussion
Paper contained a detailed description of the amendments the Rudd government
proposed to make to the counter-terrorism laws and gave the public over a month to make
submissions. Previously, under the Howard government, stakeholders were not consulted
during the development stages of legislation. Instead, the development of counterterrorism legislation was conducted by the executive branch of government behind
closed doors.104 The first opportunity that the public had to examine proposed legislation
generally occurred when it was introduced into the Commonwealth parliament. However,
the opportunities for the public expression of human rights concerns about the legislation
and to lobby parliamentarians were obviously limited by the speed with which legislation
was often enacted.
The first real opportunity for the expression of such concerns was usually at the
parliamentary committee stage. However, as Anthony Reilly notes:
[T]hey were less than an ideal source of community input, due not only to
the short timeframes allowed for the reviews, but also the stage of the lawmaking process at which they occurred. By the time that the parliamentary
committees had come to consider the Bills, not only had they been given
detailed effect through their drafting and introduction into parliament, but
also the House of Representatives, from which the government of the day is
drawn, had generally already voted in support.105
One example of this is pointed out by Simon Bronitt and James Stellios.106 The Senate
Legal and Constitutional Affairs Committee, in its review of the 2005 Anti-Terrorism Bill
(which introduced the sedition offences and the control order and preventative detention
regimes), received submissions from 294 organisations and individuals. This number is
high given that only one week was allowed for the public to make submissions. After
the close of submissions, the Committee had only another 11 business days to review
Benjamin J Goold and Liora Lazarus, ‘Introduction’ in Benjamin J Goold and Liora Lazurus, Security and
Human Rights (Hart Publishing, Oxford 2007) 3–4.
102
Reilly (n 99) 95–98.
103
Ibid 95–96.
104
Ibid 97.
105
Bronitt and Stellios (n 93).
106
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and make recommendations in relation to the Bill.107 In another example, the ALRC was
charged by the Howard government in April 2003 to investigate whether existing statutory
and common law mechanisms adequately protect classified or security sensitive material
from disclosure in court proceedings. However, the Commonwealth introduced its own
legislation, the National Security Information (Criminal Proceedings) Bill 2004, into the
Commonwealth parliament just five days before the Commission was due to report. Despite
comments from the Commission about what it saw to be deficiencies in the legislation,108
as well as from the Senate Legal and Constitutional Affairs Committee,109 only minor
amendments were made to the legislation prior to enactment.110
The real question now is whether the Rudd and Gillard governments will, in substance,
be any different to the Howard government in terms of the weight that they place on
human rights in the counter-terrorism context. Two factors suggest that they will: the
transparent process adopted by the Rudd government in relation to the Discussion Paper
and the fact that almost three years have elapsed since the Rudd government was first
elected and yet no new counter-terrorism laws have been enacted (with the exception of
the Independent National Security Legislation Monitor Act 2010). On the other hand,
however, it did not bode well that the Rudd government’s Discussion Paper contained not
a single reference to ‘human rights’. Furthermore, that the government failed to make any
substantive response to the almost 50 submissions made in response to the Discussion
Paper. In particular, none of the submissions published on the website of the Attorney
General’s Department supported the government’s proposal to introduce a seven day cap
on pre-charge detention of terrorism suspects, while 15 of the submissions opposed this.
However, this proposal was included (without any amendment) in the as yet unpassed
National Security Legislation Amendment Bill 2010.
V. Conclusion
Unlike in every other western nation, the protection of human rights in Australia falls
almost exclusively to the legislature. However, without a Bill of Rights, the political
process is usually unconstrained by fundamental human rights principles. The lack of a
domestic reference point for basic rights also means that it is difficult to determine the
extent to which, if at all, rights and the rule of law should be sacrificed in the name of
107
Ibid 957–958.
108
Australian Law Reform Commission, Keeping Secrets: The Protection of Classified and Security Sensitive
Information, ALRC 98 (2004) 40–41.
109
Parliament of Australia, Senate Legal and Constitutional Affairs Committee, Provisions of the National
Security Information (Criminal Proceedings) Bill 2004 and the National Security Information (Criminal
Proceedings) (Consequential Amendments) Bill 2004 (August 2004) vii–viii.
110
The Senate Legal and Constitutional Affairs Committee repeated the same recommendations that it had made
in August 2004 in its report on the Provisions of the National Security Information Legislation Amendment
Bill 2005 (May 2005). This Bill created a parallel regime for civil proceedings to that created by the National
Security Information (Criminal Proceedings) Act 2004 (Commonwealth).
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national security and in the fight against terrorism. When human rights protection is most
needed in Australia, it is often absent.
As was demonstrated by the counter-terrorism legislation introduced into the federal
parliament after September 11, political debate tends to match the majoritarian pressures
of Australian political life rather than the principles and values upon which the democratic
system depends. This means that any check upon the power of parliament or governments
to abrogate human rights derives from political debate and the goodwill of political leaders.
This is not a check that is regarded as acceptable or sufficient in other nations. Nor should
it be in Australia.