Castan Centre for Human Rights Law

Submission to the Parliamentary Joint Committee on
ASIO, ASIS and DSD regarding the Australian Security Intelligence
Organisation Legislation Amendment (Terrorism) Bill 2002

The main purpose of the Bill is to authorise the detention by ASIO of persons for questioning in relation to terrorism offences, as well as the creation of new offences regarding withholding of information regarding terrorism. This Bill potentially authorises severe incursions into the human rights of persons within Australia. Indeed, it is very likely that its implementation would breach our international obligations under the International Covenant on Civil and Political Rights (ICCPR).

Extended Incommunicado Detention by ASIO

The Bill authorises the detention of persons for up to 48 hours by ASIO upon a warrant granted by a prescribed authority (s 34B(1)). Of particular concern are the following issues:

1. ASIO is a secret intelligence service which is not subjected to the same open accountability procedures as the federal or State police forces. It is not advisable to implement measures which permit such a comparatively unaccountable organisation to exercise the oppressive power of detention.

2. There is no apparent limit to the number of consecutive warrants that can be granted, as is indicated by proposed s 34C(5). The only limit to such extended detention is that the warrant must be sought from the Deputy President of Administrative Appeals Tribunal after a person has been detained for 96 hours under two consecutive warrants.

3. The warrant may specify the persons whom the detainee may contact during the period of the warrant (ss 34D(2)(b)(ii), 34F(8)). Implicitly, the detainee may be held incommunicado throughout the duration of the warrant, without access to doctors, family, and, of especial concern, lawyers. Coupled with Points 1 and 2, persons can potentially be held incommunicado by a secret intelligence organisation for very long periods of time.

The above provisions breach numerous provisions of the ICCPR. The provisions may technically evade article 9(3), which requires the prompt presentation of a persons detained on criminal charges before a judge, as it is arguable that the person is not 'arrested or detained on a criminal charge'. However, article 9(1) prohibits arbitrary detention. The extended detention of a person for mere questioning with only the supervision of non-judicial officers would not satisfy the requirements of this provision, especially in light of the rights in article 9(3): it would be very odd if the ICCPR granted greater rights to persons officially arrested on criminal charges than to those who are compulsorily detained for questioning in relation to criminal offences.

British provisions which authorised the detention without judicial oversight of a person suspected of terrorism offences for 102 hours were found to breach the equivalent of article 9(3) in the European Convention of Human Rights (article 5(3)) in Brogan v UK (1988),1 even though the threat posed to Britain by terrorism from Northern Ireland in 1988 was demonstrably greater than the threat currently posed by terrorism to Australia.2 The Australian provisions authorise detention by a secret police force for a longer period than 102 hours (and even the maximum allowed under the relevant British legislation: seven days), so long as detention is reviewed by a prescribed (non-judicial) authority each 48 hours.3 Furthermore, the UK provisions provided relevant detainees with greater assured access to lawyers.4

Other international precedents in this area also indicate that the proposed legislation breaches international law. In the recent case of Freemantle v Jamaica (2000),5 the Human Rights Committee [HRC] found a breach of article 9(3) entailed in a four delay in bringing a detainee before a Judge for charge.

If one is denied access to a lawyer, and especially if one is held incommunicado, it is effectively impossible to challenge the lawfulness of one's detention in a court, as required by article 9(4) ICCPR. Incommunicado detention for three days was found to breach article 9(4) in Hammel v Madagascar.6

Regarding both articles 9(3) and 9(4), the HRC has confirmed that the prescribed functions therein can only be carried out by a judicial body, rather than a quasi-judicial substitute.7 Therefore, the oversight of the non-judicial 'prescribed authorities' of the detainee's detention does not satisfy those provisions.8

Incommunicado detention can also amount to a breach of article 17, guaranteeing rights against arbitrary interferences with family life. In McVeigh, O'Neill and Evans v UK (1981), the European Commission on Human Rights found that the detention of terrorist suspects for 45 hours without access to their wives breached the corresponding right in the European Convention, article 8.9 It would thus appear that the provisions potentially authorise breaches of article 17.

Extended incommunicado detention can further amount to breaches of articles 7 (freedom from torture, inhuman and degrading treatment) and 10 (guarantee of humane treatment for all detainees), though admittedly after long periods of such detention.10 History has shown that incommunicado detention of any length of time increases the opportunity for detainors to engage in unlawful acts of coercion to gain information: witness the infamous miscarriages of justice which arose in the UK during the period of internment in the 1970s (eg. the convictions of the Birmingham 6 and the Guildford 4 were belatedly found to be unsafe largely due to their reliance upon 'confessions' forced out of the accused). In this respect, the HRC has noted in its General Comment 20 (on article 7) that:11

[p]rovisions should also be made against incommunicado detention. ... The protection of the detainee also requires that prompt and regular access be given to doctors and lawyers and, under appropriate supervision when the investigation so requires, family members.

The complaint provisions in s 34F(9) constitute inadequate safeguards against inhumane treatment as they do not grant a detainee access to an independent body regarding complaints about ASIO (the Ombudsman has no jurisdiction over ASIO).

Reversal of Burden of Proof

The Act creates certain offences relating to the failure to give certain information (s 34G). Of particular concern is that the burden of proof in relation to these offences lies with the accused, a clear breach of article 14(2) ICCPR, which guarantees a presumption of innocence for criminal offences.

Information given under a warrant will be admissible in evidence against the informant in criminal proceedings in respect of a s 34G offence or a terrorism offence.12 Therefore, s 34G constitutes a breach of article 14(3)(g), as on occasions a person will be required by law to incriminate him/herself.13

The Possibility of Derogation

The same UK measures as had been impugned in Brogan were found to be the subject of a valid derogation in Brannigan and McBridge v UK (1993).14 Australia has not submitted a notice of derogation under article 4 of the ICCPR. However, it is submitted that a derogation would not save the ASIO Amendments from constituting a breach of the ICCPR.

First, it is doubtful that the Australian circumstances in 2002 can compare to the UK circumstances of 1993. Furthermore, the Australian provisions authorise potentially indefinite incommunicado detention without charge, and are thus harsher than the UK provisions. Finally, the HRC's General Comment 29 on derogations (issued July 2001) evinces a very narrow interpretation of Article 4. The HRC expresses the view that the prohibition on arbitrary detention in article 9(1), as well as the rights in articles 9(4) and 14(2) are effectively non-derogable, as they are essential for the effective protection of the express non-derogable rights listed in article 4(2).15 As stated above, it is our opinion that the legislation breaches of all of these provisions.

( Prepared by Sarah Joseph on behalf of the Castan Centre)

1 Series A No 145-B
2 One must not forget that Australia has not been the subject of any recent terrorist attack.
3 The British provisions required intermittent approval of the warrant extension by a senior non-judicial officer at 48 hour intervals as well.
4 Three, short, possibly monitored meetings would be the very least required for one detained for the maximum period allowed under the legislation without judicial oversight: seven days. See N. Rodley, 'Rights and Responses to Terrorism in Northern Ireland', in D. Harris and S. Joseph (eds), The International Covenant on Civil and Political Rights and United Kingdom Law (OUP, 1995), p. 125.
5 UN doc. A/55/40, p11
6 See S. Joseph, J. Schultz and M. Castan, The International Covenant on Civil and Political Rights: Cases, Commentary and Materials (OUP, 2000), para 11.44.
7 Id, paras 11.29 (Kulomin v Hungary) and 11.53-4 (Torres v Finland, Vuolanne v Finland)
8 Note that s 34B (5) specifies that a prescribed authority who happens to exercise judicial functions (ie a Federal Magistrate) exercises power under the Act in a non-judicial capacity if the power is non-judicial. The issuance of warrants is a non-judicial function - see Grollo v Australian Federal Police (1995) 131 ALR 225.
9 See D. Kinley, The European Convention on Human Rights: Compliance without Incorporation (Dartmouth, 1993), p. 61.
10 Rodley, supra, pp. 130-132.
11 See Joseph, Schultz and Castan, supra, para 9.76
12 This is exceptional, as the information given under a warrant is not otherwise admissible in criminal proceedings against the informant.
13 See Funke v France, Series A No 256A (1993), where a prosecution for non-production of documents which might have incriminated Funke in relation to a customs offence was found to breach the guarantee of a fair trial in the European Convention. See also HRC Concluding Comments on the UK, where the fact that adverse inferences could be drawn from an accused's silence in police questioning was found to violate 'various provisions of article 14': see (1995) UN doc. CCPR/C/79/Add. 55, paragraph 28.
14 Series A No 258B
15 General Comment 29, paragraph 16. See also J. Fitzpatrick, 'Protection against Abuse of the Concept of 'Emergency'', in L. Henkin and J.L. Hargrove, Human Rights: An Agenda for the next Century (American Society of International Law, Washington DC, 1994), p. 203.