Tham, Joo-Cheong; Ewing, K D --- "Limitations of a Charter of Rights in the Age of Counter-Terrorism" [2007] MelbULawRw 19; (2007) 31(2) Melbourne University Law Review 462
[∗] LLB (Hons), LLM, PhD (Melb); Senior Lecturer, Faculty of Law, The University of Melbourne.
[†] LLB (Edin), PhD (Cantab); Professor of Public Law, King’s College London, University of London. An earlier version of this article was presented at the Castan Centre for Human Rights Workshop, ‘A Bill of Rights in an Age of Fear’, Monash University Law Chambers, Melbourne, 25 August 2006. Thanks to Jim Allan, Carolyn Evans, Paula O’Brien, Adrienne Stone and George Williams who generously gave their time in reading and providing feedback on drafts of this article. Research assistance was superbly provided by Stephen Sempill and funded by a Melbourne University Early Career grant.
[1] For an up‑to‑date account of these laws: see Andrew Lynch and George Williams, What Price Security? Taking Stock of Australia’s Anti‑Terror Laws (2006).
[2] Before the 11 September 2001 attacks, Commonwealth laws did not criminalise ‘terrorism’ as such. See generally Ben Golder and George Williams, ‘What Is “Terrorism”? Problems of Legal Definition’ [2004] UNSWLawJl 22; (2004) 27 University of New South Wales Law Journal 270, 271.
[3] Charter of the United Nations Act 1945 (Cth) s 15; Charter of the United Nations (Terrorism and Dealings with Assets) Regulations 2002 (Cth) reg 6(1). For an analysis of the constitutional issues relating to this proscription power: see Joo‑Cheong Tham, ‘Possible Constitutional Objections to the Powers to Ban “Terrorist” Organisations’ [2004] UNSWLawJl 31; (2004) 27 University of New South Wales Law Journal 482, 509–21.
[4] Such conduct is not illegal if authorised by the Foreign Minister: Charter of the United Nations Act 1945 (Cth) ss 20–2.
[5] Criminal Code s 102.1(2)(a). This power was conferred by the Criminal Code Amendment (Terrorist Organisations) Act 2004 (Cth). For an analysis of the constitutional issues relating to this proscription power: see Tham, above n 3, 484–509.
[6] For a discussion of these offences: see Miriam Gani and Gregor Urbas, ‘Alert or Alarmed? Recent Legislative Reforms Directed at Terrorist Organisations and Persons Supporting or Assisting Terrorist Acts’ [2004] NewcLawRw 3; (2004) 8 Newcastle Law Review 23, 31–6. See also Aidan Ricketts, ‘Freedom of Association or Guilt by Association: Australia’s New Anti‑Terrorism Laws and the Retreat of Political Liberty’ [2002] SCULawRw 5; (2002) 6 Southern Cross University Law Review 133.
[7] Australian Security Intelligence Organisation Act 1979 (Cth) pt 3 div 3 (‘ASIO Act’).
[8] ASIO Act pt 3 div 3. The Parliamentary Joint Committee on ASIO, ASIS and DSD (‘PJCAAD’) has recently analysed these powers: PJCAAD, Parliament of Australia, ASIO’s Questioning and Detention Powers: Review of the Operation, Effectiveness and Implications of Division 3 of Part III in the Australian Security Intelligence Organisation Act 1979 (2005). For an analysis of the constitutional issues relating to these powers: see Greg Carne, ‘Detaining Questions or Compromising Constitutionality? The ASIO Legislation Amendment (Terrorism) Act 2003 (Cth)’ [2004] UNSWLawJl 32; (2004) 27 University of New South Wales Law Journal 524.
[9] Anti‑Terrorism Act [No 2] 2005 (Cth) sch 4. For a thorough review of the Anti‑Terrorism Bill [No 2] 2005 (Cth): see Sue Harris Rimmer et al, Bills Digest No 64 2005–06: Anti‑Terrorism Bill (No 2) 2005.
[10] Anti‑Terrorism Act (No 2) 2005 (Cth) sch 4.
[11] Control orders can be issued when the making of the order would substantially assist in preventing a ‘terrorist act’, even though a person is not suspected of engaging in the ‘terrorist act’: Criminal Code ss 104.4(1)(c)(i), 104.14(7). Preventative control orders can be issued for the purpose of preserving evidence in relation to a ‘terrorist act’ that has occurred in the last 28 days: Criminal Code s 105.4(6).
[12] For some details of those charged: see Brendan Nicholson, ‘A Man of Terror, or a Terrorised Man?’, The Age (Melbourne), 19 February 2005, Insight 5; Editorial, ‘The Nine Charged in Melbourne’, The Age (Melbourne), 11 November 2005, 2; Farah Faroque and Gary Tippet, ‘What Went Wrong?’, The Age (Melbourne), 12 November 2005, Insight 1, 5.
[13] See Criminal Code Regulations 2002 (Cth) pt 2. The exception is the Kurdistan Workers’ Party.
[14] Security Legislation Review Committee, Parliament of Australia, Report of the Security Legislation Review Committee (2006) 5 (‘Sheller Report’). For similar findings: see Human Rights and Equal Opportunity Commission, Isma — Listen: National Consultations on Eliminating Prejudice against Arab and Muslim Australians (2004) 67–9; Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Review of Security and Counter Terrorism Legislation (2006) ch 3.
[15] For critiques of these laws: see, eg, Michael Head, ‘“Counter‑Terrorism” Laws: A Threat to Political Freedom, Civil Liberties and Constitutional Rights’ [2002] MelbULawRw 34; (2002) 26 Melbourne University Law Review 666; George Williams, ‘Australian Values and the War against Terrorism’ [2003] UNSWLawJl 8; (2003) 26 University of New South Wales Law Journal 191; George Williams, ‘National Security, Terrorism and Bills of Rights’ [2003] AUJlHRights 12; (2003) 9 Australian Journal of Human Rights 263; Jenny Hocking, Terror Laws: ASIO, Counter‑Terrorism and the Threat to Democracy (2004) chs 11–13; Joo‑Cheong Tham, ‘Casualties of the Domestic “War on Terror”: A Review of Recent Counter‑Terrorism Laws’ [2004] MelbULawRw 16; (2004) 28 Melbourne University Law Review 512; Ian Barker, ‘Human Rights in an Age of Counter‑Terrorism’ (2005) 26 Australian Bar Review 267.
[16] Submission to United Nations Study on Human Rights Compliance while Countering Terrorism (Australia), 13 March 2006, 2 (Andrew Lynch, Ben Saul and George Williams). The main Australian text arguing for the need for a bill of rights in the War on Terror is George Williams, The Case for an Australian Bill of Rights: Freedom in the War on Terror (2004).
[17] Like the Human Rights Act 2004 (ACT), this Act was preceded by a process of public consultation and a report recommending the enactment of a bill of rights: see Human Rights Consultation Committee, Rights, Responsibilities and Respect: The Report of the Human Rights Consultation Committee (2005). For a discussion of the document that set up this committee, namely, Department of Justice, Human Rights in Victoria: Statement of Intent (May 2005) Department of Justice, Victoria <http://www.justice.vic.gov.au/> : see Dan Meagher, ‘Taking Parliamentary Sovereignty Seriously within a Bill of Rights Framework’ [2005] DeakinLawRw 36; (2005) 10 Deakin Law Review 686.
[18] See below nn 37–51 and accompanying text.
[19] Jeremy Waldron, Law and Disagreement (1999) ch 10. See also Jeremy Waldron, ‘A Right‑Based Critique of Constitutional Rights’ (1993) 13 Oxford Journal of Legal Studies 18, 23–5. For similar sentiments: see Amartya Sen, ‘Work and Rights’ (2000) 139 International Labour Review 119, 123.
[20] As was recommended by the Sheller Report in relation to certain aspects of these laws: see Sheller Report, above n 14, 5–17.
[21] George Williams, ‘Victoria’s Charter of Rights and Responsibilities: Lessons for the National Debate’ in Kay Walsh (ed), Department of Senate, Images, Colours and Reflections: Lectures in the Senate Occasional Lecture Series 2005–2006 (2006) 81, 82.
[22] See, eg, NewMatilda.com, A Human Rights Act for Australia (2007) <www.humanrightsact.com.au>. Amnesty International is also supporting the enactment of such a statute at the federal level: see New Matilda Update about a Human Rights Act for Australia (3 April 2007) Amnesty International Australia <http://www.amnesty.org.au/Act_now/
campaigns/human_rights_and_security/features/new_matilda_update_about_a_human_rights_ac
t_for_australia>.
[23] The first Australian bill of rights was, in fact, the Human Rights Act 2004 (ACT). Prior to the enactment of this Act, a consultative committee recommended the enactment of a statutory bill of rights similar to the Human Rights Act 1998 (UK) c 42: see ACT Bill of Rights Consultative Committee, Parliament of the ACT, Towards an ACT Human Rights Act (2003). For comment: see Leighton McDonald, ‘New Directions in the Australian Bill of Rights Debate’ [2004] Public Law 22. For analyses of the Australian Capital Territory statute: see Carolyn Evans, ‘Responsibility for Rights: The ACT Human Rights Act’ (2004) 32 Federal Law Review 291.
[24] George Williams, quoted in Kenneth Nguyen, ‘Independent Charter’, The Age (Melbourne), 28 July 2006, 15.
[25] For the definition of ‘public authority’: see Victorian Charter s 4.
[26] Victorian Charter s 3, which defines human rights as ‘the civil and political rights set out in Part 2’. See also Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic) 1: ‘The human rights protected by the Charter are civil and political rights’.
[27] Victorian Charter s 28.
[28] Victorian Charter s 30.
[29] On legal remedies under the Victorian Charter: see generally Simon Evans and Carolyn Evans, ‘Legal Redress under the Victorian Charter of Human Rights and Responsibilities’ (2006) 17 Public Law Review 264.
[30] Victorian Charter s 32.
[31] Victorian Charter ss 36–7.
[32] Victorian Charter s 38.
[33] Victorian Charter s 39. Reviews of the practices of ‘public authorities’ are contemplated and can be carried out by the Equal Opportunity and Human Rights Commission if requested by the ‘public authority’: Victorian Charter s 41(c). The Commission also has the role of monitoring the impact of the Victorian Charter and providing community education in relation to it: Victorian Charter s 41(a), (d).
[34] Victorian Charter s 31(6).
[35] Victorian Charter s 31(4).
[36] Victorian Charter s 31(7).
[37] Human Rights Consultation Committee, above n 17, 11. While most Australian counter‑terrorism laws passed since the 11 September 2001 attacks are federal statutes, the power of the Commonwealth Parliament to enact such laws is drawn partly from the referrals of power made by the states pursuant to s 51(xxxvii) of the Australian Constitution: see, eg, Terrorism (Commonwealth Powers) Act 2003 (Vic). Victoria has also enacted its own counter‑terrorism laws: Terrorism (Community Protection) Act 2003 (Vic).
[38] Human Rights Consultation Committee, above n 17, 12.
[39] Ibid. This argument was also made by Luke Cornelius, Victoria Police Ethical Standards Assistant Commissioner: see Selma Milovanovic, ‘Top Policeman Backs Rights Bill’, The Age (Melbourne), 20 April 2006, 9.
[40] Human Rights Consultation Committee, above n 17, 92.
[41] Ibid iii.
[42] Victoria, Parliamentary Debates, Legislative Assembly, 4 May 2006, 1293 (Rob Hulls, Attorney‑General). The Attorney‑General also stated that ‘[t]his bill promotes a dialogue between the three arms of government — the Parliament, the executive and the courts — while giving the Parliament the final say’: at 1290.
[43] Williams, The Case for an Australian Bill of Rights, above n 16, 37.
[44] Sir Anthony Mason, Why Do We Need a Bill of Rights? (29 March 2006) NewMatilda.com <http://www.newmatilda.com/policytoolkit/policydetail.asp?policyID=346> .
[45] Human Rights Consultation Committee, above n 17, ii.
[46] Spencer Zifcak, A Charter of Rights? Take the UK Example for a Start (16 February 2005) NewMatilda.com <http://www.newmatilda.com/policytoolkit/policydetail.asp?policyID=51> .
[47] Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Provisions of the Anti‑Terrorism Bill [No 2] 2005 (2005) 11.
[48] Victoria, Parliamentary Debates, Legislative Assembly, 4 May 2006, 1293 (Rob Hulls, Attorney‑General). For similar sentiments: see also Brian Walters, ‘Going the Wrong Way on Rights’, The Age (Melbourne), 20 July 2006, 17.
[49] Williams, The Case for an Australian Bill of Rights, above n 16, 37. See also Lynch and Williams, above n 1, 92.
[50] Williams, The Case for an Australian Bill of Rights, above n 16, 36.
[51] Ibid 28.
[52] Leighton McDonald, ‘Rights, “Dialogue” and Democratic Objections to Judicial Review’ [2004] FedLawRw 1; (2004) 32 Federal Law Review 1, 26.
[53] McDonald, ‘New Directions’, above n 23, 30. To a lesser extent, similar criticisms can be laid against the use of the term ‘human rights culture’ without careful elaboration. For a discussion of the interaction and tension between prevailing UK legal culture and the ‘human rights culture’ to be ushered in by the Human Rights Act 1998 (UK) c 42: see Murray Hunt, ‘The Human Rights Act and Legal Culture: The Judiciary and the Legal Profession’ (1999) 26 Journal of Law and Society 86.
[54] Victoria, Parliamentary Debates, Legislative Assembly, 4 May 2006, 1293 (Rob Hulls, Attorney‑General). See also above n 42 and accompanying text.
[55] See also below nn 232–3 and accompanying text.
[56] Such disagreement was, in fact, reflected in the process of enacting the Victorian Charter itself through debates over whether social and economic rights should be included: see Human Rights Consultation Committee, above n 17, 27–9.
[57] Tom Campbell, ‘Human Rights: A Culture of Controversy’ (1999) 26 Journal of Law and Society 6, 18.
[58] Ibid 26.
[59] John Howard, ‘Address to the ASPI Global Forces 2006 Conference —Australia’s Security Agenda’ (Speech delivered at the ASPI Global Forces 2006 Conference, Canberra, 26 September 2006).
[60] Philip Ruddock, ‘A Safe and Secure Australia: An Update on Counter‑Terrorism’ (Speech delivered at Manly Pacific Hotel, Sydney, 21 January 2006). For a critique of the government’s approach to human rights in the War on Terror: see Dianne Otto and Joo‑Cheong Tham, ‘Deconstructing the Logic of Responding to One Threat with Another: The Perils of Countering Terrorism by Eroding Human Rights’ in Marius Smith (ed), Human Rights 2006: The Year in Review (2007).
[61] Janet L Hiebert, ‘A Hybrid‑Approach to Protect Rights? An Argument in Favour of Supplementing Canadian Judicial Review with Australia’s Model of Parliamentary Scrutiny’ [1998] FedLawRw 5; (1998) 26 Federal Law Review 115.
[62] This approach has also been dubbed the ‘Commonwealth Model’ of bills of rights: Stephen Gardbaum, ‘The New Commonwealth Model of Constitutionalism’ (2001) 49 American Journal of Comparative Law 707, 710.
[63] Victoria, Parliamentary Debates, Legislative Assembly, 4 May 2006, 1290 (Rob Hulls, Attorney‑General).
[64] Janet L Hiebert, ‘New Constitutional Ideas: Can New Parliamentary Models Resist Judicial Dominance when Interpreting Rights?’ (2004) 82 Texas Law Review 1963.
[65] Janet L Hiebert, ‘Parliamentary Bills of Rights: An Alternative Model?’ (2006) 69 Modern Law Review 7.
[66] Hiebert, ‘New Constitutional Ideas’, above n 64, 1979–80. See also ibid 9.
[67] In relation to the Canadian Charter of Rights and Freedoms, for instance, Hiebert has argued that ‘one of the purported benefits of the new parliamentary rights model — the attempt to broaden the influence of judgments about rights — appears to be having the opposite effect to that intended’: Hiebert, ‘Parliamentary Bills of Rights’, above n 65, 27.
[68] Janet L Hiebert, ‘Interpreting a Bill of Rights: The Importance of Legislative Rights Review’ (2005) 35 British Journal of Political Science 235, 244 (emphasis added).
[69] Hiebert, ‘New Constitutional Ideas’, above n 64, 1980. See also Hiebert, ‘Parliamentary Bills of Rights’, above n 65, 18. In a similar vein, Gardbaum, above n 62, 756, has observed that ‘the formal, legal balance contained in the various bills of rights may not be the most important variable in determining whether and how much balance between the two values [that is, traditional judicial protection of fundamental rights and democracy] is achieved in practice.’
[71] Ibid.
[72] See Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, 60–1 (Kirby J).
[73] Justice Michael Kirby, ‘Terrorism and the Democratic Response: A Tribute to the European Court of Human Rights’ (Speech delivered as the Robert Schuman Lecture, Canberra, 11 November 2004) 7.
[74] Williams, The Case for an Australian Bill of Rights, above n 16, 37. See also Lynch and Williams, above n 1, 92, who, after noting the lack of a bill of rights at the federal level, argue that ‘[t]he only check on the power of parliament or government to abrogate human rights depends on the quality of political debate and the goodwill of our political leaders.’
[75] Hiebert, ‘New Constitutional Ideas’, above n 64, 1963.
[76] Ronald Dworkin, A Matter of Principle (1985) 33.
[78] Tom Campbell, ‘Democracy, Human Rights and Positive Law’ [1994] SydLawRw 16; (1994) 16 Sydney Law Review 195, 200.
[79] Waldron, Law and Disagreement, above n 19, 11–12. For reviews of Law and Disagreement: see, eg, Christopher L Eisgruber, ‘Democracy and Disagreement: A Comment on Jeremy Waldron’s Law and Disagreement’ (2002) 6 Legislation and Public Policy 35; Adrienne Stone, ‘Disagreement and an Australian Bill of Rights’ [2002] MelbULawRw 25; (2002) 26 Melbourne University Law Review 478.
[80] Waldron, Law and Disagreement, above n 19, 246.
[81] See above nn 59–60 and accompanying text.
[82] Sheller Report, above n 14, 3.
[83] Ibid.
[84] Hiebert, ‘A Hybrid‑Approach to Protect Rights?’, above n 61, 121. See also Janet Hiebert, ‘Parliament and Rights’ in Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone (eds), Protecting Human Rights: Instruments and Institutions (2003) 231, 233–4; Hiebert, ‘Interpreting a Bill of Rights’, above n 68, 238–9.
[86] Williams, The Case for an Australian Bill of Rights, above n 16, 37. See also above n 74.
[87] See generally David Kinley, The European Convention on Human Rights: Compliance without Incorporation (1993) pts 1–2; Hiebert, ‘A Hybrid‑Approach to Protect Rights?’, above n 61, 125–9; Hiebert, ‘Parliament and Rights’, above n 84, 241–5.
[88] Ridge v Baldwin [1963] UKHL 2; [1964] AC 40, 65 (Lord Reid).
[89] See Simon Evans, ‘Australian Parliaments and the Protection of Human Rights’ (Speech delivered as a Senate Occasional Lecture, Canberra, 17 November 2006) 7.
[90] Michael Ryle, ‘Pre‑Legislative Scrutiny: A Prophylactic Approach to Protection of Human Rights’ [1994] Public Law 192.
[91] For advantages of parliamentary protection of human rights: see generally David Kinley, ‘Parliamentary Scrutiny of Human Rights: A Duty Neglected?’ in Philip Alston (ed), Promoting Human Rights through Bills of Rights: Comparative Perspectives (1999) 158. See also David Kinley, ‘Human Rights Scrutiny in Parliament: Westminster Set to Leap Ahead’ (1999) 10 Public Law Review 252.
[92] See generally Wojciech Sadurski, ‘Judicial Review and the Protection of Constitutional Rights’ (2002) 22 Oxford Journal of Legal Studies 275, 291–3.
[93] Jeremy Waldron, The Dignity of Legislation (1999) 2, ch 2; Jeremy Waldron, ‘Legislating with Integrity’ (2003) 72 Fordham Law Review 373.
[94] Sadurski, above n 92, 292.
[95] See also Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Anti‑Money Laundering and Counter‑Terrorism Financing Bill 2006 and Anti‑Money Laundering and Counter‑Terrorism Financing (Transitional Provisions and Consequential Amendments) Bill 2006 (2006) 29–31, 41–2.
[96] PJCAAD, ASIO’s Questioning and Detention Powers, above n 8, ch 4.
[97] Parliamentary Joint Committee on Intelligence and Security, above n 14, ch 3.
[98] See below Table 1.