Spencer Zifcak

  • SPENCER ZIFCAK. Australia elected to UN Human Rights Council – despite international condemnation.

    Two weeks ago, Australia was chosen as one of two new member nations on the UN Human Rights Council (HRC). Before one gets too excited about this achievement it is worth noting that our country’s election was uncontested. There were three countries vying for two positions on the HRC – Australia, Spain and France. France dropped out of the race just weeks before the election was due to be held. Spain and Australia, therefore, walked unopposed into the two spots that remained. It was just as well that there was no contested election. This nation’s human rights record is nothing of which we can be proud. And as it happens, the UN itself has been sharply critical of several aspects of Australia’s human rights performance in the three months before, and the two weeks after, the country’s success. (more…)

  • SPENCER ZIFCAK. The Trouble with Section 44: the constitutional provision afflicting our Parliament

    It’s been quite a month. At least seven members of the Federal Parliament have been referred to the High Court to determine their eligibility to have been elected, and there is a real prospect of an outcome that could cost the Turnbull government its House of Representatives majority. The stakes are very high. (more…)

  • SPENCER ZIFCAK. What’s Wrong with Peter Dutton’s New Super Ministry? The Preparation, the Institution, and the Politician Perhaps?

    Peter Dutton is to be given a fiefdom – the new, massive Department of Home Affairs. Peta Credlin responded immediately by saying that the creation of the new department had the ‘stink of a prime minister who’s under pressure and has to be seen as doing something.’ That’s unfair. (more…)

  • SPENCER ZIFCAK. Three Ministers vs. Three Judges: Executive Government gets Flattened

    In Victoria’s Court of Appeal last Friday, an encounter unprecedented in Australian legal and political history played itself out. Through the Commonwealth Solicitor-General (SG) three Commonwealth Government Ministers made an abject apology to the Court. (more…)

  • SPENCER ZIFCAK. The Black Hearts Behind Australia’s Offshore Detention Policy

    So, the Australian Government has settled a class action brought by asylum seekers detained on Manus Island for $70,000,000. Apparently, the settlement was reached because the Government was fearful of the evidence and stories of official abuse that would have emerged over some six months should the action have been litigated in court. Lawyers in the case estimated that more than 70 witnesses would have been called and 200,000 documents examined. Afraid of the findings, the Government caved in at the door of the Court.  (more…)

  • SPENCER ZIFCAK. From Imbroglio to Fiasco: Malcolm Turnbull Loses the Plot on S.18C

    The argument about the terms of Sections 18C and 18D of the Commonwealth Racial Discrimination Act (RDA) began with the case brought against the journalist, Andrew Bolt, now some six years ago. The temperature of the debate has risen and fallen during that time, but one aspect of it has remained constant.   (more…)

  • SPENCER ZIFCAK. Robert Manne v Ramesh Thakur v Gillian Triggs: What on Earth is Going On?

    If one were ever in this situation, who would one wish to speak for them: George Brandis or Gillian Triggs? That’s the choice.   (more…)

  • SPENCER ZIFCAK. The Federal Government Attacks its Watchers

    In recent years, the Federal Government has made an art form of undermining the autonomy of independent statutory offices established to hold it to account. One by one, statutory offices have been subject to forceful governmental and media assaults. (more…)

  • SPENCER ZIFCAK. Critique of Government’s attacks on civil society.

     

    UN Special Rapporteur on Human Rights Defenders’
    Scathing Critique of Government’s Attacks on Civil Society 

    In 1998, after 14 years of haggling, the UN General Assembly finally adopted the landmark UN Declaration on Human Rights Defenders. After another 10 years of thinking about it, the Australian government agreed to sign on to the Declaration.

    The Declaration’s purpose is to promote the work of individuals and civil society organisations which act to protect people’s fundamental human rights and to ensure that in doing so, they themselves do not become the subject of human rights violations.

    In signing on, the Australian government agreed to issue a standing invitation to the UN Special Rapporteur on the Situation of Human Rights Defenders, an independent expert appointed pursuant to the Declaration, to visit Australia. The Rapporteur’s role would be to evaluate the Commonwealth and State governments’ record in meeting the standards of protection the Declaration sets down. (more…)

  • SPENCER ZIFCAK. First Law Officer v Second Law Officer: George Brandis and Justin Gleeson in Conflict (Part 2)

    In a previous article in these pages (SPENCER ZIFCAK. First Law Officer vs Second Law Officer: George Brandis undermines Justin Gleeson), I set down the core principles at stake in the present conflict between the Commonwealth Attorney-General, George Brandis, and the Commonwealth Solicitor-General, Justin Gleeson. The conflict concerns the extent and limits of the Solicitor-General’s powers to provide high-level legal advice to the Government and to its departments and agencies.

    More particularly, it relates to the Senator Brandis’ present attempt to introduce a new rule that the Solicitor-General may only provide a legal opinion to a government department or agency if the Attorney-General’s consent is first obtained. (more…)

  • SPENCER ZIFCAK. Freedom of Speech and the Racial Discrimination Act

     

    Within days of the July election result having finally been announced, forces within the Conservative faction of the Liberal-National party moved to re-open the debate on reform to S.18C of the Racial Discrimination Act (RDA). Section 18C makes it a civil offence to insult, offend, humiliate or intimidate a person on the grounds of their race.

    The Prime Minister has made it clear that he is not interested in pursuing the matter. Sensibly, he does not want to re-open the damaging schism that occurred when hostilities on the issue broke out following the Federal Court’s 2011 judgment against the conservative columnist, Andrew Bolt.

    Pursuant to S.18C, Bolt was found to have humiliated the indigenous applicants in the case by implying recklessly and incorrectly that because they had fair skin they were not really aboriginal. And that having fair skin they had chosen falsely to identify as aboriginal in order unmeritoriously to obtain financial and professional advantage. (more…)

  • SPENCER ZIFCAK. Counter-terrorism and human rights.

    I am presently in Paris. Along with many other countries, France faces a terrorism threat. France is grappling with the problem of how democracies can best handle threats of terrorism. In light of that I am reposting an earlier article from the Policy Series, by Spencer Zifcak, on human rights and combatting terrorism. John Menadue

    Do Human Rights Fit or Should We Just Forget About Them?

    Hard upon the ascent of violent terrorism in the Middle East, Africa and elsewhere, and Australia’s first experience of terrorist crime in Martin Place, the Australian Government has been active in bringing forward new legislation designed to prevent and punish terrorist crime. There can be no quarrel with that. Nevertheless, the draconian nature of the new laws has caused alarm amongst many concerned with the protection of individual rights and freedoms. (more…)

  • SPENCER ZIFCAK. Chilcot: The War and the Law

     

    As is now well known, the Chilcot Report on the British Government’s planning, execution and aftermath of the Iraq war provided a scathing critique of almost every aspect of the Prime Minister’s and government’s conduct. There is one facet of this deplorable episode that has not yet received any adequate consideration in the Australian media. This concerns the politicisation of the process that led to the UK Government’s conclusion that the war was lawful. (more…)

  • SPENCER ZIFCAK. First Law Officer vs Second Law Officer: George Brandis Undermines Justin Gleeson (Part 1)

     

    It has become a regrettable pattern in the legal world for Attorney-General, George Brandis, to seek to undermine holders of independent legal offices with whom he has disagreed.

    One thinks back only a year, to recall his vociferous attack on Gillian Triggs, the President of the Australian Human Rights Commission. This attack followed from the Commission’s release of an extensively researched report on the severe ill-treatment of children in Australia’s offshore refugee detention centres. The findings were damning. Brandis accused Triggs of bias and then had his head of department offer her a senior position in some other less contentious area of government. To her great credit, she refused the offer. (more…)

  • SPENCER ZIFCAK. PNG Supreme Court Trumps Detention on Manus Island and Australia’s High Court too. It is regrettable that Australia does not have a similar Bill of Human Rights

    In the latest legal saga to beset the Government’s troubled offshore processing program, the Supreme Court of Papua New Guinea declared that the mandatory detention of asylum seekers from Australia on Manus Island was unconstitutional. The Court held that the detention of some 900 men on Manus violated the right to liberty guaranteed by PNG’s Constitution.

    A closer look at the decision discloses just how far the Australian and PNG governments have been prepared to go in conspiring to keep asylum seekers, travelling by boat to Australia, out of the country and incarcerated indefinitely offshore. (more…)

  • Spencer Zifcak. Special Envoy on Human Rights. Ruddock. What?

    In 2003, I wrote a short book entitled Mr Ruddock Goes to Geneva. The book was not as superficial as its title might have suggested. It was in fact a serious study of Australia’s vexed relationship with the UN Human Rights Treaty System. My argument was that the Howard Government should have given the recommendations from UN Human Rights Treaty bodies about ways in which Australia could improve its observance of human rights more thoughtful consideration.

    Instead, the Government had adopted the habit of rejecting any criticism of its human rights record out of hand. This came at the cost potentially of retarding the interests and well-being of many disadvantaged Australian citizens, not least those of the nation’s indigenous peoples and those seeking asylum in the country.

    The book’s title, however, had meaning. It referred to a now legendary performance by then Minister for Immigration, Philip Ruddock, before the UN’s Committee on the Elimination of Racial Discrimination in its 2002 periodic review of Australia’s compliance with the International Convention on the Elimination of Racial Discrimination.

    Mr Ruddock’s appearance took place against the background of a considerable change in the Government’s attitudes and actions in relation to human rights. The Government had wound back native title. It had steadfastly refused to apologise to or compensate the stolen generations. Aboriginal reconciliation had ground to an acrimonious halt. In response to a surge in people seeking political asylum, the Government had hardened the policy of mandatory detention, and built far flung detention centres in which asylum seekers were detained behind barbed wire fences.

    Mr Ruddock’s performance before the UN Committee was, by any account, a dismal failure. His demeanour was arrogant and condescending. His arguments served only to harden the Committee’s opinion that Australia, a nation whose human rights record had been admired, had joined the ranks of countries known routinely to violate the freedoms and entitlements of their citizens.

    In his presentation before the Committee, the Minister began by suggesting that it would be difficult for the Committee to come to any reasoned conclusions about Australia’s human rights record because it lacked the expertise to do so. He referred erroneously to Committee members as delegates, thereby implying wrongly that they were beholden to their governments. They are not. They are chosen for their human rights expertise. Nevertheless, he frequently deflected criticism by Committee members by engaging in counter-criticism of the human rights record of their countries of origin.

    His responses to substantive, and increasingly critical questioning were no better. Asked about the continuing health, educational and economic disadvantages experienced by Aboriginal peoples, he suggested that the problem stemmed principally from their choice of lifestyle, rather than with any deficit in government policy.

    On mandatory sentencing, he asserted that it was not the role of the Commonwealth to override State legislation, even if that legislation breached Australia’s international human rights obligations. He denied that mandatory sentencing had the effect of discriminating against indigenous people, despite a mountain of evidence to the contrary.

    He justified the decision not to apologise to the stolen generations because the Government had already expressed regret for the hurt and trauma that many Aboriginal people continued to feel. The fundamental distinction between an expression of parliamentary regret and a national apology seemed to elude him.

    This, then, is the man that the Prime Minister has chosen to lead Australia’s campaign to be elected to the UN Human Rights Council in 2018. If that campaign is to be successful, as I hope it will be, a more inappropriate appointee could hardly be imagined. Still, that single appearance at the UN would not be sufficient to damn the appointment without more. There is plenty more.

    Philip Ruddock is the architect of the ‘Pacific Solution’. We should call this for what it is. It is a government policy pursuant to which ‘boat people’ including ‘boat children’ are subjected to calculated persecution, cruelty, degradation and damage in order that other people who have suffered from persecution, cruelty, degradation and damage in their home countries should be deterred from flight to Australia by sea. The ‘Special Envoy for Human Rights’ bears principal responsibility for this policy, though it may readily be acknowledged that a number of his successors as Minister for Immigration have rendered the policy ever more abhorrent.

    When Minister, Mr Ruddock misled the Australian public grievously when, with his devious colleague Peter Reith, he asserted that the children of asylum seekers had been thrown overboard in order to place pressure on the government to allow them to land on Australia’s shores. The claim was always untrue. Ruddock has never apologised.

    As part of the Government’s response to terrorist attacks elsewhere, Philip Ruddock introduced draconian sedition laws, which had they been implemented in full could have put a stop to critical journalistic and public discussion and debate concerning terrorism and the justification or otherwise of measures to prevent it. In response to initial protest at the laws, he referred them to the Australian Law Reform Commission. The Commission recommended either full repeal or major amendment. In a blow to freedom of speech, its recommendations were shelved.

    When Attorney-General, Mr Ruddock disgraced himself by expressing his support for the American system of military commissions established to try detainees at Guantanamo Bay. His support arose from contention concerning the fate of David Hicks, an Australian citizen detained there. Any bush lawyer could see that the commissions were biased and that their procedures were grossly unfair. Our Attorney-General, the nation’s first law officer, defended them.

    He went further. He failed to utter one word of criticism concerning the use of torture at Guantanamo Bay and Abu Ghraib. Instead, he surmised that sleep deprivation might not constitute torture at the same time as suggesting that admissions made under such conditions may be admitted as legitimate evidence. Later, the US Supreme Court declared the military commissions unconstitutional and the charge against Hicks as invalid because the relevant criminal law did not exist at the time the alleged offences were committed. So much for the Special Envoy for Human Rights’ legal perspicacity and morality.

    Human rights are a subset of a broader commitment to the rule of law. As Attorney-General, Mr Ruddock seemed to have little time for the idea. He was well known for not reappointing members of the Refugee and Immigration Tribunals with whose decisions he did not agree and replacing them with his supporters. In this way, he substantially undermined the Tribunals’ independence.

    He sought time and again to narrow the scope of judicial review of immigration decisions. So, for example, he introduced an amendment to the Migration Act that inserted a privative clause the effect of which was completely to remove all but administrative and mechanical migration decisions from legal challenge or appeal before the Federal Court of Australia.

    Mr Ruddock made criticism of the judiciary into an art form. Departing from the centuries’ long convention that one core element of an Attorney-General’s role was to defend the judiciary against attacks by executive government, Mr Ruddock became the courts’ most ardent critic. The ferocity of these attacks moved former Justice of the High Court, Michael McHugh, to remark that:

    “If the Executive Government is continually criticising the Judiciary, the authority of the courts of justice is likely to be undermined and public confidence in the integrity and impartiality of the judges is likely to be diminished. Continuing conflict is also likely to induce the Executive Government to prevail on the legislature to take the extreme step of reducing or abolishing judicial review with the result that the rule of law is undermined”.

    Taken together, the frank human rights violations of which Mr Ruddock has been guilty during the course of his long political career, and I have mentioned only a few, suggest two principal conclusions in relation to his appointment as Special Envoy for Human Rights.

    First, had he even a scintilla of insight concerning his record, he should courteously have refused the Prime Minister’s offer of the position, regarding himself as particularly unsuitable. Secondly, the Prime Minister’s judgment must be called into question. He has just shot Australia’s bid for a seat on the UN Human Rights Council in 2018 in both feet.

    Spencer Zifcak is Allan Myers Professor of Law at the Australian Catholic University and Immediate Past President of Liberty Victoria

     

  • Spencer Zifcak. Co-opting the Judiciary: Counter-Terrorism Laws at Work

    Regrettably, one matter that has drifted to the sidelines in Australian debates about the operation of counter-terrorism laws is that these laws consistently marginalise and undermine the role of the judiciary. Judicial power, and hence the rule of law, is being incrementally distorted and diminished.

    Counter-terrorism law continues to burst from the executive and the legislature.   Just a few months ago, three enormous tranches of such law swept through the parliament. These were the National Security Legislation (Amendment) Act protecting and preventing disclosure of information about special intelligence operations; the Foreign Fighters Act; and the metadata legislation.  (See my chapter on Counter-terrorism and human rights in this blog on 28/05/2015.)

    Now, only months later, three more counter-terrorism laws have passed or are imminent. These are a law to strip dual-nationals involved in terrorist activity of their citizenship; one to imprison people convicted of terrorist offences indefinitely; and another to extend the application of control orders to children as young as 14. In each of these instances, the proper exercise of judicial power is, to a greater or lesser extent, being compromised.

    Take first the citizenship-stripping law. What this does is remove Australian citizenship from any dual-national suspected of engagement with terrorism. Whether or not a suspected individual will have their citizenship revoked is made a matter for executive government. This is so, even though revocation is plainly punitive.

    Traditionally, a person suspected of engaging in criminal activity would be charged and tried. If found guilty, it would be for a court of law to determine an appropriate penalty. Under the rather remarkable new scheme created by the citizenship law, however, the judiciary is cast aside. Revocation is to occur automatically once it is determined that the prohibited behaviour has occurred.

    The scheme is remarkable because this legislation is silent upon the question of who is to decide that terrorist activity has occurred. In a previous draft, the Minister was given a role. But that would have breached the separation of powers by empowering a Minister rather than a judge to decide matters of fact and law and to impose a punishment.

    So, the automaticity mechanism was created instead. A person’s citizenship will be revoked automatically upon engaging in conduct defined with reference to enumerated terrorism offences in the Criminal Code.

    The legislation applies only to cases where the person concerned engages in the relevant conduct outside Australia or where the person has left Australia before (s)he has been tried for the offences alleged. The mechanism is not to be used against a person in Australia and, therefore, available for trial. This narrowing of the legislation’s scope is welcome.

    From thereon, however, the process is a mess. Revocation is said to occur instantly upon a determination that the terrorist activity has been engaged in. But there is no one identified to make that determination.

    Instead, it appears that the law will apply itself. This is a constitutional novelty. How it could work in practice is anyone’s guess. The High Court will have something to say about it.

    If a fair and considered decision is to be made as to whether a person has engaged in a prohibited activity and is to be punished for it, in our system of government that is a decision that should be in the sole province of the judiciary. It is not to be left to some uncertain, mysterious and secretive intra-governmental process.

    At the recent meeting of the Council of Australian Governments, the Prime Minister and the State Premiers agreed to introduce uniform State laws to provide for the indefinite detention of people convicted of terrorist activities. Indefinite detention may be authorised where it is determined that a relevant person is due for release after serving a term of imprisonment but remains a potential threat to national security.

    There is precedent for the establishment of a regime of indefinite detention. Several States have laws providing for the continuing detention of serious sexual offenders and others convicted of serious acts of violence. Somewhat surprisingly, the High Court has decided that such laws are constitutional.

    The problem with indefinite detention laws, however, is that they require State Supreme Courts to engage in deliberations that are not traditionally regarded as part of the proper exercise of judicial power. Judicial power is the power that courts have to decide upon controversies between contesting parties on the basis of pre-existing law. The existence of some pre-existing law as the basis upon which legal disputes are to be resolved is normally regarded as essential.

    In laws providing for indefinite detention, however, legal criteria for decision are absent. Instead, what the court is asked to do is make no more than an educated guess as to whether past criminal behavior is likely to be repeated at some time in the future. How is a rigorous judgment to be made that a person convicted of a single terrorist offence, say a decade ago, remains a threat to national security after the effluxion of that time?

    Psychiatric and psychological research has demonstrated consistently that predictions as to dangerousness are notoriously unreliable. And that is even where the people making those predictions are experts in the field. Judges are not.

    That is why Justice Michael Kirby dissented in the constitutional case. He said that courts should apply punishments only in relation to criminal acts committed in the past. Judges, he said, should not be co-opted into imposing penalties “for crimes that are feared, anticipated or predicated to occur in the future on evidence that is notoriously unreliable and otherwise would be inadmissible, and by people who do not have the gift of prophecy.”

    If prisoners have committed a crime while imprisoned, whether of incitement to violence, conspiracy, threat, intimidation, the infliction of actual physical harm or some other similar offence – charge and try them. If guilty, impose a new sentence.

    If not, they should be released upon the completion of their prescribed term of imprisonment, under surveillance and subject to notification requirements if necessary. And that way, the judiciary will not be required by law to perform functions that are alien to it.

    Finally, there are control orders for children. In Australia, control orders have been part of the counter-terrorism mosaic for several years. They have almost never been used. The former Independent National Security Legislation Monitor, Brett Walker SC, has cast doubt on their effectiveness. Britain recently dispensed with them.

    Control orders may be imposed upon a person where it is anticipated that the person affected may engage in terrorist activity. The controls imposed may include a prohibition on the use of electronic communications, a ban on meeting certain people or doing certain things, restrictions upon movement, and even house arrest.

    The problem here, again, is that the judicial procedures associated with the imposition of control orders are unusual and unfair. A court may issue a control order in a secret hearing and in the absence of the person subject to it. The person will know nothing about it until he or she is arrested and served with the order. Neither the subject of the order nor their legal representative is provided with a full brief of the evidence against them. Without access to the evidence, the prospects for a successful appeal are minuscule. The judge hears only one side.

    The application of such a draconian process and penalty to a 14 year old child is hardly to be contemplated. It may reasonably be anticipated that such a partial procedure is as likely to alienate and radicalise a young person as it is to rehabilitate them.

    Speaking of this expansion of the control order regime, the former Independent National Security Legislation Monitor said recently that ‘I have a well-known opposition to control orders as, I think, a distraction from what is the fundamental task of the criminal law of investigation, prosecution and, if there’s a conviction after trial, sentencing.”

    There is a better solution to the problems these new laws attempt to address. It can be summarized in three words: ‘charge or release’. We give investigation, prosecution, trial and conviction away at our peril.

    Spencer Zifcak is Allan Myers Professor of Law and Director of Research at the Academy of Law, Australian Catholic University.  He is immediate past president of Liberty Victoria.

     

     

     

  • Spencer Zifcak. UN Human Rights Council Weighs in on Australia

    On 21st of March 2000, an Australian delegation appeared before the UN Committee on the Elimination of all Forms of Racial Discrimination (CERD) in Geneva. The Hon Philip Ruddock, then Minister for Immigration in the Howard Government, led the delegation. The meeting did not go well.

    Confronted by exceptionally well-informed and assertive questioning by the Committee’s rapporteur, the Minister became condescending and defensive. His justifications for Australian policies, particularly in relation to Australia’s indigenous peoples, fell apart.

    Their health, education and social disadvantages, he implied, were the result of lifestyle choices. Nothing could be done about mandatory sentencing and its disproportionately adverse impact on black Australians because that was the responsibility of the States. As to the position of women, Ruddock replied that ‘if you knew some of the women around me, by blood and other, you would know the empowerment of women is a very significant issue!’ This was hopeless.

    The result was that CERD responded with a highly critical evaluation of Australia’s racial discrimination record. It expressed grave concern regarding high rates of indigenous incarceration. It noted the disproportionately discriminatory effect of mandatory sentencing. It remained concerned about dramatic levels of inequality in indigenous peoples’ access to health, education and housing. It was highly critical of the Government’s failure to respond seriously to the Australian Human Rights Commission’s report on the Stolen Generations.[1]

    The Government responded by savaging the messenger. It stated that that the Committee’s report was ‘an unbalanced and a wide-ranging attack that intrudes unreasonably into Australia’s domestic affairs’. In his finest diplomatic language, then Foreign Minister, Alexander Downer said that ‘if a UN Committee wants to play politics here in Australia then it will end up with a bloody nose’.
    Things do not seem to have improved very much. Reflecting upon Australia’s shellacking before the UN Human Rights Council on November 9th this year, the current Minister for Immigration, Peter Dutton, described the process as ‘a farce’. So, what happened?

     

    Australia was in Geneva for the UN Human Rights Council’s second review of its human rights record, a process known as Universal Periodic Review (UPR). With the agreement of all UN member states, every country submits its human rights performance for review once every four years. Interestingly, given his somewhat dire performance previously, Mr. Ruddock was back again as a member of the Australian delegation. He was more circumspect this time.

    Over four hours, more than 100 nations took the opportunity to question and criticise many different aspects of Australia’s performance in protecting human rights. These criticisms were largely consistent with the UN High Commission for Human Rights’ (OHCHR) own analysis of Australia’s actions in responding to the reports of UN Human Rights Treaty Committees in the four years since the last UPR. The Council also benefitted from a fine background document prepared by the Human Rights Law Centre on behalf of more than 200 Australian human rights NGOs.

    The OCHCR report contained several very positive comments concerning Australia’s recent record. It warmly welcomed the Parliament’s commitment to recommend a constitutional amendment that recognized Australia’s first peoples. It praised Australia’s concerted efforts to combat people trafficking and trafficking related exploitation. It applauded the introduction of the National Disability Insurance Scheme. It commended Australia’s advocacy for the abolition of the death penalty globally and new legislation that had introduced an offence of torture into the Australian Criminal Code.

    Nevertheless, the report noted that UN Treaty Bodies had recommended consistently that the Australian Government do much more to close the inequality gap between Australia’s indigenous and non-indigenous peoples. It reflected concern commonly expressed about the health disparities of children living in rural and remote areas, children in out-of-home care, children with disabilities and in particular about the gap in health status between indigenous and non-indigenous children. It expressed alarm at the levels of violence against women and the sexual abuse of children.

    Its principal reservation, however, related to Australia’s treatment of people seeking asylum. The report’s introductory paragraph on the issue read:

    The response of Australia to migrant arrivals had set a poor benchmark for its neighbours in the region. The authorities had also engaged in the ‘turn around’ and ‘push-back’ of boats in international waters. Asylum seekers were incarcerated in centres in third countries where they faced conditions that the Special Rapporteur on Torture had reported as amounting to cruel, inhuman and degrading treatment…and which also violated the Convention on the Rights of the Child. Even recognised refugees in urgent need of protection were not permitted to enter Australia which had set up relocation arrangements with countries that might be ill-prepared to offer those refugees any durable solution. Such policies should not be considered a model by any country.”

    In the review before the Human Rights Council, the vast majority of countries picked up on the same issues. Mr Dutton was right to criticise North Korea’s intervention which was hypocritical and wayward in the extreme. But one outlier in a hundred does not constitute a farcical dialogue.

    France recommended that Australia strengthen measures to eliminate discrimination against indigenous populations. The USA urged Australia to consult indigenous peoples when considering the viability of remote communities. New Zealand asked that Australia address inequalities affecting health, education, employment and income that disproportionately affect indigenous peoples and other minorities. Hungary suggested that Australia should develop, in partnership with indigenous communities, a national strategy to implement the UN Declaration on the Rights of Indigenous Peoples.

    Germany strongly condemned Australian refugee policy saying that children, families and other individuals at risk, in particular survivors of torture and trauma, should be removed from immigration detention centres. Sweden urged Australia to ensure that relevant measures should conform fully with international law and human rights, including the principle of non-refoulement and the detention of asylum seekers should only occur when absolutely necessary and for a minimal time.

    The USA told Australia to closely monitor the processing of refugees and asylum seekers in offshore detention centres to ensure that their fundamental human rights are respected. Norway insisted that independent judicial review of detention and its conditions should be ensured. Iceland recommended that Australia fully incorporate its international human rights obligations in domestic law by introducing a comprehensive, judicially enforceable Human Rights Act.

    There is nothing too farcical here. In fact there was next to nothing in the criticisms made by more than half the nations of the globe that has not previously been identified as deeply problematic by Australia’s Human Rights Commission.

    There is no chance of Australia winning a seat on the UN Human Rights Council in 2018-2020 – unless we listen and act.

    ******************

    [1] Readers who wish to follow the history of Australia’s relationship with the UN Human Rights Treaty Body System may wish to have a look at my book Mr Ruddock Goes to Geneva, UNSW Press, 2003.

    Spencer Zifcak is Allen Myers Professor of Law and Director of Research at the Academy of Law, Australian Catholic University. He is Immediate Past President of Liberty, Victoria.

     

  • Spencer Zifcak. Human rights inquiry and a Charter of Rights!

    Tony Abbott and George Brandis always used strong rhetoric about the necessity to protect Australians’ traditional rights and freedoms. The reality under the Abbott government, however, was different. The rights of minority racial, religious, ethnic, refugee and environmental groups were relentlessly pared back. Those who stood up for human rights, like the President of the Australian Human Rights Commission, Gillian Triggs, and various UN Human Rights Rapporteurs, were shot when they conveyed their critical message.

    Nevertheless, it may yet be that the former Prime Minister and his Attorney-General will deliver to Australians a profoundly beneficial legacy with respect to human rights. That legacy looks like it will come in the form of the Australian Law Reform Commission’s (ALRC) current inquiry into the review of Commonwealth laws for their consistency with traditional rights, freedoms and privileges.

    Early in his term, Senator Brandis asked the ALRC to do two things. First, to identify Commonwealth laws that encroach upon traditional rights and freedoms and, secondly, to critically examine those laws to determine whether the encroachments identified could be justified. In the terms of reference, Brandis provided a very broad definition of such traditional freedoms.

    The ALRC has assumed this remit conscientiously, intelligently and energetically. In a recent interim report, which runs to 515 pages, it has identified hundreds of statutory provisions that may trespass upon traditional common law rights. The Commission is now calling for submissions to assist it in determining whether and to what extent these laws are justifiable.

    The nature and extent of legislative provisions that may be in breach of fundamental rights and freedoms will come a shock to anyone who cares to delve into the ALRC’s recent report. No report in recent decades has come close to providing such a detailed enumeration, description and analysis of statutory infringements of rights. Take freedom of speech and procedural fairness as examples.

    Commonwealth laws that may prohibit or restrict freedom of speech have been identified in criminal laws, secrecy laws, contempt laws, media and telecommunications laws, intellectual property laws, information laws and anti-discrimination laws. Not all of these laws will be unjustified but, equally, the ALRC has distinguished many that are likely to be.

    These include provisions in the Crimes Act, Aboriginal and Torres Strait Islander Act, Aged Care Act, Anti-Money Laundering and Counter-Terrorism Financing Act, Australian Securities and Investments Commission Act, the Australian Intelligence Organisations Act and the recent Australian Border Force Act.

    Two recent cases illustrate free speech problems graphically. S.35P(1) of the ASIO Act provides that a person commits an offence if the person discloses information and the information relates to a ‘special intelligence operation.’ A special intelligence operation is defined as one established to carry out a special intelligence function that may involve an ASIO officer in the commission of a criminal or civil wrong. The penalty for the unauthorised disclosure of such information is five years imprisonment.

    This provision could slam the door on investigative journalism. All the government will need to do to stop a journalistic investigation with respect to security and intelligence is to warn media organizations that that such an investigation may relate to a ‘special intelligence operation’. Journalists are unlikely to court the possibility of gaol by writing further about their inquiries once such a caution has been issued.

    Pursuant to the recent Australian Border Force Act 2015, it is an offence for an ‘entrusted person’ to disclose information obtained by that person in the person’s capacity as an entrusted person. An entrusted person is defined to include Immigration and Border Protection Department workers. These workers can include external consultants, contractors or service providers such as doctors and welfare workers performing work by contract for the Department. Any person employed by an entrusted person will also be covered.

    The first people to find themselves silenced under this law will be those who work in Australia’s regional processing centres on Nauru and Manus Island. The law will reach far beyond this, however, muting every person involved in the provision of refugee legal, counselling and welfare services if their non-government employer is in receipt of government funding. This may be so even if the disclosure of the information would cause no harm to the public interest.

    Statutory encroachment upon the right to procedural fairness constitutes another hugely important class of potential rights violations. Procedural fairness is the entitlement that every person whose rights are adversely affected by a government decision has to contest the decision before an independent and impartial court or tribunal. Procedural fairness has not infrequently been denied in the spheres of corporate and commercial regulation, national security legislation and migration law. In recent years, there has been tidal wave of denials of procedural fairness in the latter category.

    There are four key areas of concern in relation to migration. These relate to the mandatory cancellation of visas (on character, security grounds or other grounds); the new ‘fast-track’ process for assessing applications for refugee status; changes to the Maritime Powers Act (the legislation which authorises boat turn-backs); and ASIO assessments in relation to refugees and non-citizens. In each, many former rights to procedural fairness have been swept away.

    So, for example, under the new fast-track procedure for assessing refugee status, immigration officers make initial decisions on refugee applications after asking asylum seekers a very limited number of standardised questions. Then, the Minister may (but need not) refer the officer’s decision to a newly constituted Immigration Assessment Authority (IAA).

    The IAA, however, can conduct its review without interviewing the applicant or conducting a hearing; without allowing an applicant to comment on adverse information or the reasons for the decision; without providing an applicant with any documents relied upon at the officer’s initial examination; and without considering any new information or evidence at the request of the applicant. In other words, procedural fairness has been rendered entirely nugatory.

    The ALRC has done remarkable work in identifying a plenitude of similar instances. It is already apparent from that work that Australia’s protection of traditional rights and freedoms can be characterized as piecemeal and haphazard. If it stays the course, the Commission’s final report is likely to stand as the most comprehensive analysis yet undertaken of the state of rights and freedoms in Australia.

    Given the numerous examples of statutory infringements of rights and freedoms that are likely to be identified, it may be time seriously to consider the most comprehensive and sensible solution to this mishmash: that is, the parliamentary enactment of an Australian Charter of Rights.

    Spencer Zifcak is Allan Myers Professor of Law at the Australian Catholic University and a former President of Liberty Victoria

     

  • Spencer Zifcak. Counter-Terrorism and Human Rights.

    Fairness, Opportunity and Security.
    Policy series edited by Michael Keating and John Menadue.

    Do Human Rights Fit or Should We Just Forget About Them?

    Hard upon the ascent of violent terrorism in the Middle East, Africa and elsewhere, and Australia’s first experience of terrorist crime in Martin Place, the Australian Government has been active in bringing forward new legislation designed to prevent and punish terrorist crime. There can be no quarrel with that. Nevertheless, the draconian nature of the new laws has caused alarm amongst many concerned with the protection of individual rights and freedoms.

    One of the most pressing questions in contemporary Australian politics, therefore, has become how best to reconcile the interests of national security, on the one hand, and the protection of fundamental human rights and freedoms, on the other. In this article I consider critically the three large tranches of counter-terrorism legislation recently adopted by Federal Parliament. Then I look to the question of how human rights considerations might constructively be incorporated into existing debate and deliberation upon counter-terrorism law. 

    1. The National Security Amendment Act 

    The first of the three tranches of recent counter-terrorism legislation is contained in the National Security Legislation Amendment Act (No.1). The legislation amended several existing Acts to strengthen the powers of Australia’s intelligence agencies. It gives ASIO officers immunity from prosecution for criminal activity in which they may engage in the course of ‘special intelligence operations.’ It creates new offences and severe penalties for the disclosure of information that relates to these operations.

    The Act defines a ‘special intelligence operation’ as one established to carry out special intelligence functions in the course of which an ASIO officer or affiliate may engage in criminal conduct or commit a civil wrong. A special intelligence function is one carried out for the purpose of obtaining evidence that may lead to a prosecution for a serious Commonwealth offence. That means, for example, that if during the course of a special intelligence operation an ASIO officer beats up an innocent party or recklessly causes them harm, s(he) will be immune from criminal prosecution.

    Nevertheless, special intelligence operations are subject to legal limitations. An operation, tautologically, must be one that will assist ASIO in the performance of a special intelligence function. The unlawful conduct involved in undertaking an operation must be limited to the maximum extent consistent with conducting an operation effectively. The conduct involved must not cause death or serious injury to any person; involve a sexual assault; or result in serious damage to property.

    Even this brief description makes it plain that the special intelligence operation provisions travel far more widely than is consistent with the rule of law. It is unacceptable in principle and practice that ASIO officers should be immune from prosecution for crimes they commit. This violates the fundamental constitutional principle that every person should be treated equally before the law.

    The essential point remains that ASIO operatives should not be exempted from the law. In the 1984 case of A v Hayden, former Chief Justice of the High Court, Sir Anthony Mason put the point succinctly:

    “For the future, the point needs to be made loudly and clearly, that if counter-espionage activities involve breaches of the law they are liable to attract the consequences that ordinarily flow from breaches of the law”. 

    The National Security Amendment Act (No.1) prohibits the disclosure by any person of information that relates to a special intelligence operation. S.35P is as follows.

                35P. Unauthorized disclosure of information

    • A person commits and offence if:
      1. The person discloses information; and
      2. The information relates to a special intelligence operation.
        Penalty: Imprisonment for 5 years.

    This provision could slam the door on investigative journalism. Press freedom exists in part to ensure that government agencies can be held to account for their actions. The accountability principle applies to intelligence organizations no less than to any other entity in the machinery of government. S.35P is a concerted attempt to undermine it.

    Journalists and whistle-blowers often work in tandem to obtain and expose information about governmental corruption and malfeasance. This activity is clearly in the public interest. Journalists cultivate knowledgeable and expert sources all the time. They promise sources that their identity will not be revealed. They receive and evaluate confidential information. For the most part, they are careful when publishing information concerning surveillance operations, particularly when they relate to the protection of national security.

    S.35P, however, is likely to chill these crucial investigative activities. Journalists, lawyers and others who come into possession of specialist intelligence information may be prosecuted not only when they intend to disclose that information but also if they are reckless as to the possibility of its disclosure. All the government now needs to do to stop such disclosures is to warn media organizations that matters in which journalists have an interest may relate to special intelligence operations. Journalists are unlikely to court the possibility of jail once such a caution has been issued. S.35P should be repealed in its entirety.

    1. The Foreign Fighters Act 

    The second tranche of counter-terrorism legislation is contained in the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act. The primary purpose of this legislation is to enable the investigation, arrest, prosecution and punishment of people supporting foreign conflicts. The secondary purpose is to limit the opportunities of Australian residents to engage in foreign fighting and domestic support for foreign fighters. Speaking generally, there is no problem with criminalizing such activities. The problematical issues are different.

    Each of the foreign incursion offences pivots upon the definition of ‘to engage in hostile activity’. A person engages in hostile activity in a foreign country if they engage in conduct intending to overthrow the government of the country or to subvert society or intimidate the public in that country. This definition substantially expands the one formerly contained in the Crimes (Foreign Incursions) Act 1978. The expansion is achieved by the inclusion of the subversion and intimidation components.

    ‘Subverting society’ is defined extraordinarily widely. It may for instance apply to serious damage to any property, serious interference with an information system or a serious disruption to transport infrastructure. Such activities may legitimately be criminalized but to attach a life sentence to them is manifestly excessive. Importantly, too, the new subversion offences are not tied directly to terrorism. Subversive activity encompasses a range of actions that, unlike terrorist acts, need neither be intended to influence a government by intimidation nor be motivated by the advancement of a political, ideological or religious cause. To avoid substantial legal over-reach, these offences should be tied directly to the far narrower definition of a terrorist act contained in the Commonwealth Criminal Code. 

    The problems attached to overly broad ministerial discretion are illustrated graphically by new offences attached to travelling to ‘no go zones’. Pursuant to the Foreign Fighters law, it is an offence for a person to enter an area in a foreign country that has been declared by the Minister for Foreign Affairs as a no-go zone, where the Minister is satisfied that a listed terrorist organization is operating there. To enter or remain in a declared area attracts a penalty of 10 years imprisonment.

    The scope of the legislation is wide. It means that a person will be liable to prosecution for crossing an artificial geographical line, determined at the Minister’s discretion and drawn, in any part of the world, according to the Minister’s judgment as to the nature, extent and national security implications of a civil conflict occurring there.

    The exceptions are narrow. They include cases in which a person has entered an area to engage in humanitarian or journalistic activities or for bona fide family reasons. They do not, however, cover business travellers, pilgrims, adventurers, ill informed tourists, people who enter inadvertently, people in transit, others who have gone to visit or support friends and so on.

    The exception for journalists extends only to those who are working in a professional capacity. Social media correspondents, bloggers, researchers, independent cameramen and others are unlikely to fall into the professional category. The parliament should include, therefore, a general defence for a person who has travelled to the area for an innocent purpose that nevertheless falls outside the present narrowly defined, legitimate reasons for travel.

    1. The ‘Metadata’ Act

    The third tranche of counter-terrorism legislation is the Telecommunications (Interception and Access) Amendment (Data Retention) Act, better known as the ‘metadata’ law. Pursuant to this law, telecommunication service providers are required to keep telecommunications data of various kinds for a period of two years. The data to be kept includes the name and address of service subscribers; contact information; payment information; identifiers of the account from which, and to which, a communication has been sent; the date and time of the every communication; and the types of communication and service utlilised. Access to the content of communications, however, is excluded.

    A dizzying array of law enforcement agencies may request the information to which service providers must provide access. Fifteen classes of agency are so authorized. These include the AFP; State Police Forces; ASIC; the ACCC; and all State Anti-Corruption Commissions. With one significant exception, a judicial warrant is not required before a demand for metadata relating to a person is made.

    The exception is for journalists. In considering whether to approve the issue of a journalist information warrant, the Minister must be satisfied that the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of a journalistic source. In determining the balance to be struck between these competing public interests the Minister must also have regard to the extent to which the privacy of any person may be interfered with.

    The problems with metadata legislation of this kind are self-evident. While the content of communications may not be accessed, metadata itself can provide a detailed picture of a person’s private life. Law enforcement agencies can with alacrity paint a person’s individual portrait from their phone calls, email, online chat, credit card purchases, web searches, identified associates, and physical location. The sophisticated new technology underpinning access to metadata can also allow enforcement agencies to engage in sweeping surveillance of entire communities.

    All this might be justifiable if strong protections against arbitrary invasions of privacy were also embedded in law. But they aren’t. The cardinal error is the absence of a legislative requirement for enforcement agencies to obtain an access warrant, the justification for which is independently and impartially assessed by the judiciary whenever metadata is sought.

    According Weight to Human Rights Considerations 

    Unlike every other Western democracy, Australia does not have a constitutional or statutory Charter of Rights. In the present context, the lack of comprehensive legal protection for Australians’ rights and freedoms has two undesirable effects. The first is that there is no legal mechanism through which Australian governments can be encouraged or obliged to comply with international human rights law. This is despite the fact that Australia has ratified, and therefore has agreed to observe the terms of, every major international human rights treaty.

    The International Covenant on Civil and Political Rights (ICCPR), for example, protects freedom of expression, freedom of movement and individual privacy. It is founded upon a commitment to the rule of law. Each of these rights is likely to be transgressed as the legislation previously described takes effect.

    Freedom of expression is constrained whenever media freedom is undermined. The National Security Amendment Act will silence journalistic investigation with respect to special intelligence operations, while allowing security agencies to define such operations broadly. The Telecommunications Interception Act authorizes sweeping access to journalists’ metadata while providing only flimsy protection against the identification and surveillance of their sources. Furthermore, it will inevitably act as a prohibitory disincentive to sources who might otherwise seek to expose public and private corruption and malfeasance.

    Privacy rights are frighteningly compromised by the metadata laws. Even in the absence of access to content, security agencies will now be able to create intimate portraits of surveilled individuals without their knowledge, without prior reasonable suspicion that an offence has been committed and without any restrictions on how the data will be analyzed and used. A criminal prosecution founded upon such secretly acquired metadata may prejudice the right to fair trial and, hence, the rule of law. The rule of law is further undermined by exempting ASIO officers from criminal prosecution when they engage in special intelligence operations.

    The absence of a Charter of Rights has another profoundly detrimental effect. It impoverishes public discussion and debate about controversial legislation such as that recently enacted. A Human Rights Act of the kind proposed by the National Consultation on Human Rights in 2009, but shelved by the Rudd Government, would have added two significant dimensions to public and political deliberation concerning counter-terrorism laws.

    First, once made law, the Act would have provided a clear set of internationally endorsed human rights criteria on the basis of which a more informed and considered judgment could have been made as to the desirability or otherwise of the three tranches of legislation recently adopted.

    Secondly, a Human Rights Act could be a formidable legal instrument through which the Australian community generally could through time be educated concerning the fundamentals of Australian democracy – representative and responsible government, the separation of judicial power, the rule of law, freedom of expression, non-discrimination and the ethical foundation and practical relevance of human rights themselves. Study after Australian study has demonstrated the barrenness and failures of contemporary civics education. A Charter of Rights could provide one model set of non-partisan standards to which all Australians could look in making sense of their political world and in framing their aspirations for it.

    Conclusion 

    All too often the terrorism debate is framed in terms of trade-offs. The trade-off approach proposes that in order to strengthen national security, we are obliged to accept a corresponding decrease in human rights protection. If only we could get the balance right, our political difficulties might be resolved. There are two errors in this argument.

    First, it presumes that these two public interests are distinct and in competition with one another. On the contrary, the protection of national security must necessarily include the defence of the fundamental values upon which Australian democracy is founded. A commitment to democracy, human rights and the rule of law is at the heart of those values. Similarly, a commitment to human rights plainly embraces the necessity to provide the safety in society upon which the effective exercise of human rights depends. The right to life, liberty and security is a fundamental inclusion in any and every human rights catalogue. The relationship between the two interests, therefore, is complex and mutually reinforcing.

    Secondly, the real dilemma we face is not one that primarily concerns how national security and human rights should be brought into some kind of uneasy equilibrium. Instead the fundamental question to be addressed is what, in all the circumstances, does justice require? Or, to put the matter another way, is the threat of terrorism presently so great as to justify us acting unjustly? If we are to preserve the kind of society to which we aspire, the answer to that question must surely be ‘no’. 

    Spencer Zifcak is Allan Myers Professor of Law and Director of Research at the Academy of Law, Australian Catholic University. He is immediate past president of Liberty Victoria. 

    See following article by Susan Ryan on the campaign for a Human Rights Act in Australia.

     

     

     

  • Spencer Zifcak. The Martin Place Siege

    I first came across Man Haron Monis, the Sydney siege gunman, in early 2013. The High Court of Australia had just handed down an important new decision on the breadth of the protection the Australian Constitution provides for freedom of expression. The facts of the case centred upon offensive letters sent to the parents of Australian soldiers killed in Afghanistan. The issue was whether sending offensive letters through the post to the private addresses of parents could properly be regarded as an exercise of constitutionally protected free speech. The person who sent the letters was Monis.

    In one letter, he described a soldier son as having murdered civilians. He likened the soldier to a dirty animal. He described the son’s body as the dirty body of a pig. He wrote that the son’s moral culpability was no less reprehensible than Hitler’s. Justice Heydon described the communications as ‘sadistic, wantonly, cruel and deeply wounding blows during the most painful days of parents’ lives’.

    He seemed to me to be deranged – not necessarily mentally ill but nevertheless profoundly disturbed, the disturbance having a distinctly paranoid character. I thought to myself that this is a person who should probably be watched.

    What we have learnt subsequently confirms that impression. Monis described himself as a sheikh but had no qualifications to be one. It appears that he had engaged in criminal fraud in Iran prior to obtaining refugee status in Australia. He owned a rifle, but no one seems to know in what lawful capacity he was able to obtain one.

    He uploaded a photo of the ABC’s religion presenter, Rachel Kohn, under the heading ‘You Will Pay the Price’, after she described him as an Islamic renegade. He described the deaths of people in the Victorian bushfires as Allah’s revenge upon Australians because the Government had not opposed the death penalty for the Bali bombers.

    He placed advertisements in local newspapers, holding himself out as a spiritual consultant. This rather brought him undone as he was later charged with forty offences of sexual and indecent assault many of which arose from his ‘consultations’. Early in 2014, he was charged with being an accessory after the fact to the murder of his former wife who had been beaten and set alight. Yet he wasn’t on ASIO’s surveillance list.

     

    There has been a lot of discussion since the Sydney siege as to whether Monis was a terrorist or, more prosaically, had committed a murderous crime. This is splitting hairs. The act was terrifying and people died. Whether Monis acted as a ‘lone wolf’ terrorist, or as a deranged criminal, doesn’t seem to count much when weighed against that.

    It is relevant, however, in determining how the siege could have happened and what might be done to prevent similar shocking events in the future. It is almost certain that Monis acted alone. It is also clear that he had had several encounters with the law that could reasonably have led one to the view that he was manipulative, religiously extreme, conscienceless and had a propensity towards violence. He should never have got a gun.

    Monis was on bail for serious criminal offences. Being charged as an accessory after the fact to murder is not nothing. Nor is the allegation that one may have engaged in multiple instances of sexual and indecent assault. Apparently, one reason that bail was granted in relation to the accessory charge was that the Magistrate decided that the case against Monis was weak. Another was that the prosecution did not oppose bail, even on the murder-related charge. Extraordinarily, Monis’ girlfriend, the person charged with the murder, also obtained bail.

    Without being in court to hear the evidence provided, it is difficult to disagree with the Magistrate’s decision. It might have been a reasonable one in the circumstances.  Nevertheless, had it been me in the chair, at the very least I would have put the totality of the charges to the defence and the prosecution and asked them to explain clearly and persuasively how it was that each thought that bail was appropriate. And I would have questioned Monis.

    The NSW Attorney-General has asserted that had his proposed reforms to the Bail Act, been in force, Monis would not have been given bail. These reforms provide that any person charged with a serious crime would be required to prove that they were not a danger to the community. Reversing the onus of proof in a criminal matter is hardly ever desirable as it requires the person concerned to demonstrate a negative. How does one prove that one will not be dangerous? Better to leave it to the prosecution to make the case that one is likely to be.

    So, what are we to do about ‘lone wolf’ terrorists? The honest answer appears to be that nobody knows. The US Attorney-General, Eric Holder, remarked recently that ‘that is the thing that keeps me up most at night, this concern about the lone wolf who goes undetected.’

    Without knowing the details, it seems clear that ASIO has managed to break up a number of terrorist cells that had been in the course of planning terrorist attacks. A small but not insignificant number of individuals have been subsequently tried and convicted. The irony (thankfully) is that it is more likely that terrorist plots will be foiled when they are planned on a large scale and involve several actors, than when all that is involved is a a random plot devised by a psychopathic zealot. The ‘lone wolf’ may communicate with no one and, planning alone, may evade suspicion and detection altogether.

    Turning to a present political controversy, the comprehensive retention of metadata, as currently proposed by the Federal Attorney-General, Senator Brandis, may assist in establishing a pattern of activity by an individual or group that alerts law enforcement officials to the possibility of a terrorist attack. That fact, however, does not provide a complete justification for access to every Australian’s data.

    Individual privacy is important. It forms a component part of what it is to live in a free and democratic society. We dismiss its significance at great peril.

    By all means require ISPs to retain individuals’ metadata for two years. But do not allow law enforcement agencies to access it without prior, independent judicial review. A judge should not agree to the provision of access to an individual’s private internet or telephone activity unless it can be demonstrated that there is a reasonable suspicion that the targeted person may engage in criminal or terrorist activity.

    It is unlikely that the examination of metadata would have netted Mon Haron Monis prior to his siege. As a lone wolf, not even his girlfriend may have been aware of his terrible plan. And he wasn’t on a watch list when patently he should have been.

    In the end, however, more terror laws aren’t going to cut it. Radicalisation must be tackled from its outset. One place to start is at school.

    Every school, primary and secondary, private and state, should be required to teach civics in the context of democracy, political plurality and cultural diversity. The communication of hatred, intolerance and discrimination in schools on racial, religious or ethnic grounds should be prohibited. The study of comparative religions, including secular morality,  should be strongly encouraged. The exposure of children to a wide and balanced diversity of political, social and cultural opinion should form an imperative part of every school’s curriculum.

    This won’t stop the spread of terrorism now. But it could make us safer and more respectful of each other in the foreseeable future.

    Spencer Zifcak is Professor of International Human Rights Law

    This article first appeared in Arena, no 134, 02-2015 – 03-2015.

    See www.arena.com.au

     

     

     

     

     

     

     

     

     

     

  • Spencer Zifcak. Proportionality Lost: Australia’s New Counter-Terrorism Laws. Part 2

    The Foreign Fighters Bill

    The second tranche of counter-terrorism legislation introduced by the Attorney-General, Senator Brandis, late last year was contained in the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill. This Bill (now passed into law) amended several Commonwealth Acts, most notably the Commonwealth Criminal Code. The primary purpose of these new laws is to enable the investigation, arrest, prosecution and punishment of people supporting foreign conflicts.

    1. Foreign Incursion Offences

    Each of the foreign incursion offences pivots upon the definition of ‘to engage in hostile activity’. A person engages in hostile activity in a foreign country if they engage in conduct intending to:

    overthrow the government of the country, or any other country, by force of violence; or

    subvert society in that or any other country; or

    intimidate the public in that country or any other country.

    This definition substantially expands the one formerly contained in the Crimes (Foreign Incursions) Act 1978. The expansion is achieved by the inclusion of the subversion and intimidation components. Consequently, every offence added to the Criminal Code Act, which turns on the broader conception of ‘engaging in hostile conduct’ has a much expanded scope from that in existing foreign incursion laws.

    So, for example, in the former law the penalty for incursion into a foreign state with the intention of engaging in hostile activity was 20 years. In the new law, the penalty for the more widely defined offence is life imprisonment. Similarly, the former law provided for a penalty of 10 years imprisonment for actions in preparation for hostile activity, whether or not that hostile activity occurs. In the Foreign Fighters legislation, the much broader offence again attracts a life sentence. The idea that preparatory conduct will attract a life sentence is of particular concern. It might, for example, catch a family member in Australia whose only relevant act is sending medicines to a relative engaged in an incursion abroad.

    ‘Subverting society’ is also defined extraordinarily widely. It may for instance apply to serious damage to any property, serious interference with an information system or a serious disruption to transport infrastructure. Such activities may legitimately be criminalized but the attachment of a life sentence to them is manifestly excessive.

    Importantly, too, the new subversion offences are not tied directly to terrorism. Subversive activity encompasses a range of actions that need neither be intended to influence a government by intimidation nor be motivated by the advancement of a political, ideological or religious cause. Subversion takes in the disruption of electronic, communications, transport and postal systems and any and every infringement of property rights, whether or not they form part of a terrorist attack. To avoid substantial legal over-reach, therefore, these offences must be tied directly to the explicit definition of a terrorist act in the Commonwealth Criminal Code.

    To appreciate the breadth of what is proposed, one might take another Timorese example. An East Timorese person who had been granted Australian citizenship or permanent residency and who returned to East Timor in the 1990s to participate in the rebellion against the genocidal Suharto regime’s oppression of the country would have been caught by the Foreign Fighters law and faced a life term. Jose Ramos Horta was resident in Australia for some time while carrying on his diplomatic work in pursuit of Timorese independence at that time. No doubt his activities consisted of advocating for, making preparations for and supporting the commission of hostile activity against the Indonesian government. It would have been a pity, given his subsequent receipt of the Nobel Peace Prize, if he had had to serve a long term of imprisonment in Australia.

    1. Declared Area Offences

    The problems attached to overly broad ministerial discretion are illustrated graphically by the offences attached to travelling to ‘no go zones’. Pursuant to the Foreign Fighters law, it is an offence for a person to enter an area in a foreign country that has been declared by the Minister for Foreign Affairs as a no-go zone, where the Minister is satisfied that a listed terrorist organization is operating there. To enter or remain in a declared area attracts a penalty of 10 years imprisonment.

    The relevant provisions create a list of exceptions that include, for instance, cases in which a person has entered an area to engage in humanitarian or journalistic activities or for bona fide family reasons. The exceptions are narrow however. They may not, for instance, cover business travellers, pilgrims, adventurers, ill informed tourists, people who enter inadvertently, people in transit, others who have gone to visit or support friends and so on. The exception for journalists extends only to those who are working in a professional capacity. Social media correspondents, bloggers, researchers, independent cameramen and others are unlikely to fall into the professional category.

    A person picked up in a declared area is also placed at a significant legal disadvantage. To make out a case against her, a prosecutor need only demonstrate that she has been found in a zone, and that the Minister has declared the zone. Once those two requirements have been met, it becomes a matter for the accused to prove that she falls within a lawful exception. Not only that, but she is required to demonstrate that the excepted purpose for her presence in the zone is the sole purpose for her being there.

    This is not strictly a case in which the presumption of innocence is negated, but it comes pretty close. The accused person must prove that they are in an area for a legitimate reason rather then the prosecution having to demonstrate that the accused’s purpose falls outside the mandated exceptions. Further, for a person to prove a negative, that is that they are not in an area for a nefarious purpose, presents formidable evidentiary difficulties.

    The declared area offence should be excised from the legislation. Alternatively, the parliament should include a general defence for a person who has travelled to the area for an innocent purpose which nevertheless falls outside the present narrowly defined, legitimate reasons for travel.

    Conclusion

    It will be clear that in critical respects the new counter-terrorism laws are a disproportionate response to real but manageable threats. While it is highly unlikely that the laws canvassed here will be reviewed in the foreseeable future, a number of supplementary reforms should be considered. These would strengthen the mechanisms through which the legislation could be continuously reviewed and amended when that is found necessary.

    A new person should be appointed to the Office of the Independent National Security Legislation Monitor immediately. The Office of the Inspector-General of Intelligence and Security should be given stronger powers to monitor Australia’s domestic and international intelligence agencies particularly in relation to their conduct of special intelligence operations. The Parliament’s Joint Committee on Intelligence and Security should report annually on issues and problems arising from the implementation of counter-terrorism laws.

    It is imperative that the laws analyzed here should be subject to sunset terms of no longer than three years. The great problem with counter-terrorism legislation is that no government will ever wish to court the blame for a terrorist attack if ever it occurs. There is consequently, no political incentive for such legislation ever to be repealed. With all its disproportionality and violations of civil liberties, it will stay on the books indefinitely unless, by law, it must be brought to an end when national security and human rights considerations suggest that it is justified to do so.

    Spencer Zifcak is Professor of International Human Rights Law

    This article first appeared in Arena, see Terror Laws: Arena, No 133, 12 2014-01 2015.  www.arena.com.au

  • Spencer Zifcak. Proportionality Lost in Australia’s new Counter-Terrorism Laws. Part 1

    The Attorney-General, George Brandis, crashed two major tranches of counter-terrorism law through federal parliament recently. As always there are two problems with such an approach: overkill and error. Both tranches demonstrate these deficits in abundance.

    It’s important to say that in Australia the threat of terrorist attacks is real. So is the danger posed by fighters returning trained and hardened in Middle Eastern conflicts. The threat and the danger have undoubtedly increased because of the Government’s military commitment to a third Iraq war. The case for some new security laws, specifically targeted at clearly identified threats, is persuasive.

    However, new law requires careful deliberation, particularly if it infringes on civil liberties. In this instance it didn’t get it.  Consequently, the parliament has adopted counter terrorism laws that are loosely drafted, disproportionate to the threats they are designed to deter, and that violate human rights unnecessarily.

    In this article I deal with the National Security Legislation (Amendment) Bill.  In the next I consider the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill.

    The National Security Legislation (Amendment) Bill

    The National Security Legislation Amendment Bill (No.1) gives ASIO officers immunity from prosecution for criminal activity in which they may engage in the course of ‘special intelligence operations.’ It creates new offences and severe penalties for the disclosure of information that relates to these operations.

    1. Special Intelligence Operations

    The National Security Bill defines a ‘special intelligence operation’ as one established to carry out special intelligence functions in the course of which an ASIO officer or affiliate may engage in criminal conduct or commit a civil wrong. A special intelligence function is one carried out for the purpose of obtaining evidence that may lead to a prosecution for a serious Commonwealth offence. That means, for example, that if during the course of a special intelligence operation an ASIO officer beats up an innocent party or negligently causes them harm, s(he) will be immune from criminal prosecution or any claim for damages.

    Nevertheless, special intelligence operations are subject to legal limitations. An operation, tautologically, must be one that will assist ASIO in the performance of a special intelligence function. The unlawful conduct involved in undertaking an operation must be limited to the maximum extent consistent with conducting an operation effectively. The conduct involved must not cause death or serious injury to any person; involve a sexual assault; or result in serious damage to property. An authorized officer must assess and approve a special intelligence operation prior to its commencement.

    Even this brief description makes it plain that the special intelligence operation provisions travel far more widely than is consistent with the rule of law. It is unacceptable in principle and practice that ASIO officers should be immune from prosecution for crimes they commit. This violates the fundamental constitutional principle that every person should be treated equally before the law.

    The safeguards set in place with respect to the commission of crimes are weak. Unlawful conduct is confined to that required for the successful implementation of an operation. This is no real safeguard at all. The greater the perceived importance of the operation, and the greater the risk in effecting it, the greater the latitude for criminal behavior will be.

    Criminal and civil immunity may be provided so long as agents’ conduct does not cause the death of, serious injury to, or the commission of a sexual offence against a person. So, causing injury to a person may be permissible as long as it is not serious injury. Where the line between serious injury and injury is to be drawn is anyone’s guess. The limitation is expressed broadly. Consequently, it could mean that a person may still obtain immunity where (s)he engaged in conduct that was likely to result in, death, serious injury or sexual violation, but did not ultimately engender those consequences. That is insupportable.

    Given the clear dangers attached to the conduct of special intelligence operations, not only to ASIO officers but also to members of the general public, one would have expected substantial safeguards to be attached to their authorization. Instead authorization is left to the Director-General or Deputy Director-General of ASIO alone. Plainly, they are judges in their own cause. Authorization should reside with real judges. A judicial warrant should be required to authorize a special intelligence operation. The case for authorization should be subject to scrutiny by a judge of a federal court who can assess an ASIO application independently and impartially. As an additional safeguard a Public Interest Monitor should be appointed to adduce relevant evidence and test each case made by ASIO prior to a judicial decision on a warrant being issued.

    1. Information Disclosure and Freedom of the Press

    The National Security Amendment Bill (No.1) prohibits the disclosure by any person of information that relates to a special intelligence operation. It is worth citing the provision in full:

    35P. Unauthorized disclosure of information
    A person commits and offence if:

    The person discloses information; and

    The information relates to a special intelligence operation.
    Penalty: Imprisonment for 5 years.

     

    This provision could slam the door on investigative journalism. Press freedom exists in part to ensure that government agencies can be held to account for their actions. The accountability principle applies to intelligence organizations no less than to any other entity in the machinery of government. S.35P is a concerted attempt to undermine it.

    Take the fiasco of ASIS’s covert recording of the deliberations of the Timor-Leste’s Cabinet. The recording was of the Cabinet’s discussion of legal arguments to be put before the International Court of Justice in Timor’s case against Australia concerning the division of proceeds from oil exploration in the Timor Sea. Journalists alerted by Timor-Leste’s Australian lawyer made the existence of the recording public. The AFP raided the lawyer’s office and legal documents related to the case were confiscated. The Court delivered Australia a stern rebuke.

    Now under s.35P, if this had been declared a special intelligence operation, the lawyer and journalist who reported upon the ASIS operation could both be subject to prosecution and substantial terms of imprisonment. As a result, no one would have known about the bugging which, in the legal circumstances that prevailed, was scandalous. No questions would have been asked, no answers required. Accountability would have been defenestrated.

    Journalists and whistle-blowers often work in tandem to obtain and expose information about governmental corruption and malfeasance. This activity is clearly in the public interest. Journalists cultivate knowledgeable and expert sources all the time. They promise sources that their identity will not be revealed. They receive and evaluate confidential information. They question and determine its veracity and reliability. They balance the merits and demerits of disclosure.

    S.35P, however, is likely to chill these crucial investigative activities. Journalists, lawyers and others who come into possession of specialist intelligence information may be prosecuted not only when they intend to disclose that information but also if they are reckless as to the possibility of its disclosure. All the government now needs to do to stop such disclosures is to warn media organizations that matters in which journalists have an interest may relate to special intelligence operations. Because these are secret, the media will be unable to verify that assertion. And no one will be willing to risk imprisonment for publishing related information for fear of being prosecuted for reckless release. Press freedom, and the accountability that it generates, will be damaged severely.

    S.35P should be repealed in its entirety.

    Part 2 will be posted tomorrow.

    Spencer Zifcak is Professor of International Human Rights Law

    This article first appeared in Arena, see Terror Laws: Arena, No 133, 12 2014-01 2015.  www.arena.com.au