Dr Joo-Cheon Tham*
Law School, University of Melbourne
"Deconstructing the logic of responding to one threat with another: the perils of countering terrorism by eroding human rights"
Paper delivered at the Castan Centre "Human Rights 2006: The Year in Review" Conference on 1 December 2006
Australian anti-terrorism laws rest on three key planks. First, these laws bring into existence a range of ‘terrorism’ offences.(i) At the base of these offences is the wide statutory definition of a ‘terrorist act’; a concept that, at its margins, embraces certain acts of industrial action, such as picketing by nurses.(ii) These offences travel far beyond acts like bombings and hijackings to criminalise not only ‘terrorist acts’ but also conduct ancillary to ‘terrorist acts’. For example, a ‘terrorism’ offence is committed by merely possessing a thing that is connected with the preparation for, engagement in or assistance in a ‘terrorist act’.(iii) Also included in this plank are censorship laws and a range of new sedition offences.(iv)
Second, powers have been conferred on the government to ban ‘terrorist’ organisations.(v) Under the Criminal Code Act 1995 (Cth) (Criminal Code), regulations can be passed listing an organisation as a ‘terrorist organisation’ if the federal Attorney-General is satisfied, on reasonable grounds, that the organisation is ‘directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act has occurred or will occur)’.(vi) In 2005, the Anti-Terrorism Act (No. 2) 2005 (Cth)(vii) expanded this banning power to include organisations that ‘advocate’ the doing of a ‘terrorist act’. ‘Advocate’ was defined broadly to include directly or indirectly counselling or urging the doing of a ‘terrorist act’ as well as directly praising such acts where there is a risk that such praise might lead another to engage in such acts.(viii) Once an organisation is listed, a particularly far-reaching set of ‘terrorism’ offences will apply to it which essentially impose criminal liability upon the entire group and persons who engage in certain forms of association with the proscribed group.
The third plank of Australia’s anti-terrorism laws are unprecedented powers conferred upon security and police organisations. Since mid-2003, the Australian Security Intelligence Organization (ASIO) has had powers compulsorily to question and detain persons suspected of having information related to a ‘terrorism’ offence. Such persons can be detained for up to a week in largely incommunicado circumstances.(ix) With the passage of the Anti-Terrorism Act (No. 2) 2005 (Cth), the Australian Federal Police (AFP) acquired a new set of powers. A senior AFP officer can now issue a preventive detention order authorising the imprisonment of a person for up to 24 hours when there are reasonable grounds to suspect that the person is engaged in various ‘terrorism’ offences and the order will substantially assist in preventing a ‘terrorist act’ and is reasonably necessary for this purpose. Such detention may be extended for another 24 hours by a current or retired judicial officer.(x) Further, upon a request by a senior AFP officer, a control order may be issued by a court against persons not suspected of any crime. If satisfied on the balance of probabilities that the order will substantially assist in preventing a ‘terrorist act’, or if the person has provided or received training from a listed ‘terrorist organisation’, the court may issue such an order if it is reasonably necessary to protect the public from a ‘terrorist act’. These orders can last up to a year and may include house arrest.(xi)
The unprecedented character of these laws has prompted Robert Cornall, Secretary to the Attorney-General’s Department, to observe that these laws constitute ‘a whole new area of criminal law and law enforcement procedure’.(xii) From the bench, Chief Justice Spigelman of the New South Wales Court of Criminal Appeal has described these laws as ‘a special and, in many ways unique, legislative regime’.(xiii)
The unparalleled nature of the new laws does not necessarily mean that they are unjustified. According to the federal government, exceptional laws are required to adapt to the post-September 11 environment. Prime Minister Howard, commenting on counter-terrorism laws passed in 2005, acknowledged that, while the laws were unusual, they were ‘necessary because we live in unusual times’.(xiv) The logic seems to be that the ‘extraordinary’ threat of terrorism justifies extraordinary measures. As former federal Attorney-General Daryl Williams argued with the introduction of the first wave of anti-terrorism laws in 2002, ‘[t]hese measures are extraordinary, but so too is the evil at which they are directed’.(xv)
This new ‘evil’ is portrayed as a threat that is qualitatively different from the type of politically, religiously and ideologically motivated violence of earlier times; a novel type of threat which requires a new type of response. According to the federal government, transnational terrorism pursued by extremist Muslims is said to manifest in a ‘new kind of foe’ that is not ‘responsive to conventional deterrents’ and that ‘challenges us in ways which demand new and innovative forms of response’.(xvi) Attorney-General Philip Ruddock, for instance, has argued that ‘[t]errorism is arguably the greatest threat this nation has faced in many decades, and perhaps the most insidious and complex threat we have ever faced’.(xvii)
Moreover, by countering this threat through anti-terrorism laws, the government presents itself as pursuing an agenda of human rights and civil liberties. Speaking of these laws, the Prime Minister John Howard said that ‘[w]hen people talk about civil liberties, they sometimes forget that action taken to protect the citizen against physical violence and attack is a blow in favour, and not a blow against, civil liberties’.(xviii) These laws, according to the Prime Minister, protect human rights by securing ‘the greatest human right of all … the right to live’.(xix) Hence, for the government, these laws do not prioritise security over human rights and justice. Rather, the ‘legislation is directed towards the twin goals of security and justice … these goals are not separate ideals’.(xx)
In this paper, we question the logic and validity of the government’s defence of these new laws. We begin by unpacking the key elements of government’s justification for these laws and draw out how they have helped to make the adoption of these laws more palatable to the Australian public in a climate of fear. Grounded in a ‘War on Terror’, the government’s approach poses serious dangers to the protection of human rights through its preference for coercive measures, its presumption that such measures do protect lives and the acute risk that counter-terrorism laws will be discriminatorily applied especially to Muslim communities.
We then examine a selection of the new laws from each of the three planks. With the first plank of Australian anti-terrorism laws, we focus on the censorship and sedition laws. We also analyse the second plank of such laws, those allowing the banning of ‘terrorist’ organisations and, thirdly, we examine the case of Jack Thomas who was charged with terrorism offences and is currently subject to Australia’s first control order. Each of these areas illustrates one or more of the dangers of the government’s approach. Finally, we demonstrate how the approach taken by the United Nations (UN) Security Council and international human rights bodies suggests an alternative way to tackling terrorism with an emphasis on non-coercive measures and precise criminal offences, in a broader context of promoting tolerance and respect for diversity, and addressing pressing issues of social injustice and inequality. In contrast to the Australian government’s approach, these bodies also stress the importance of addressing and ameliorating any discriminatory effects associated with counter-terrorism laws.
Unpacking the dangerous logic of a ‘War on Terror’
A striking feature of the justifications given by the federal government for its far-reaching counter-terrorism laws is that they typically rest upon vague statements as to the threat of terrorism to Australia. This resort to generalities is facilitated by the paucity of public information on the threat of terrorism to Australians. For instance, a key source of public information is the government’s own National Counter-Terrorism Alert Level. According to this alert system, the threat level has remained unchanged at ‘medium’ since the September 11 attack(xxi), which means that the government believes that a ‘terrorist attack could occur’ in Australia [emphasis added].(xxii) Such information tells us very little. It is silent on who may be contemplating such an attack, what their modus operandi is, what criteria are being used to assess the threat and how the new laws may counter the threat that is posed.
Such a dearth of information prompted former head of Strategic Policy of the federal Department of Defence, Allan Behm, to complain in relation to the Anti-Terrorism Bill (No. 2) 2005 (Cth) that:
- At no point has the government offered a detailed statement on the nature of the terrorist threat facing Australia, or provided an analysis of how the threat might affect Australia and its people, why terrorist groups might wish to perpetrate acts of indiscriminate violence, what the targets might be, where such events might occur, when they might occur, how they might be done, or how this Bill might serve to reduce the threat. While it would not be the Government’s intention to create fear and panic in the community, the community deserves something more than vague assertions reflecting the nation’s sympathy for the United States in the aftermath of the 11 September 2001 attacks in New York and Washington, or the nation’s sentiments in the aftermath of the bombings on the London underground.(xxiii)
Such ‘vague assertions’ pave the way for perceptions to be informed by the images of overseas atrocities. It is not uncommon, for instance, for the Attorney-General Philip Ruddock to begin a speech dealing with counter-terrorism with detailed references to the Bali bombings(xxiv) and to the London July 2005 bombings.(xxv) Allied to these images of overseas violence is a specific construction of a ‘terrorist’. According to the Attorney-General:
- We know terrorists target us for what we are and for what we believe in. They offer no coherent vision for the world yet will kill innocent civilians in pursuit of their vague objectives driven by blind ideological hatred. They detest democratic traditions, processes and institutions. They repudiate our commitment to freedom and our belief in the sanctity of the individual. And they reject market economies and the process of open and free trade.’(xxvi)
The horror of events like the Bali bombings and the discursive construction of the fanatical terrorist then leads to a bias in favour of coercive measures like the military use of force and criminal laws. It follows that ‘mass murders’ like the London July bombings can only be prevented through the heavy hand of criminal law; that fanatics bent upon violence can only be responded to by force. In short, what is needed is nothing less than a ‘War on Terror’.
Within the framework of the ‘War on Terror’, it becomes quite easy for governments to invoke the language of human rights in defence of ‘tough’ measures that are necessary to protect lives. Those who oppose such measures, on the other hand, are dismissed as not having ‘adapted’ to the post-9/11 environment or, in the words of a senior editor of Newsweek, are ‘hopelessly “Sept. 10” ’(xxvii) or, worse, demonstrate a callous disregard for the lives of the innocent.
In our view, the terrifying rhetoric of the ‘War on Terror’ poses serious challenges to the protection of human rights. First, it narrows the horizon of possibilities by favouring a particular type of measures. Instead of the menu of options being cast broadly, coercive measures are given pride of place. Non-coercive measures to counter religiously and politically motivated violence, like attending to local conditions of economic and social exclusion, to xenophobia and to valourisation of violent expressions of masculinity, which might, in fact, be more effective, are dismissed as ‘soft’ options.
Second, the rhetoric of the ‘War on Terror’ tends to presume that ‘tough’ measures like counter-terrorism laws do, in fact, protect lives. Such a presumption only has purchase in a framework of vague statements fleshed out by horrific images. When one delves beyond the generalities to come to grips with the detail of counter-terrorism laws, it is clear that some of these laws have nothing or very little to do with protecting lives or promoting the right to life. Foremost, there is a mismatch between harsh laws that operate domestically and a threat of terrorism to Australia that is, according to the AFP, ‘predominantly offshore’ [emphasis added].(xxviii) Moreover, many of these laws, in particular, the ‘terrorist organisation’ offences, criminalise conduct that has no link with violence or harm or any attempt to commit violence or harm, while imposing severe constraints on freedom.
The rhetoric of a ‘War on Terror’ also obscures the particular dangers that post-9/11 Australian counter-terrorism laws pose for the protection of human rights. In essence, these laws seek to prevent ‘terrorism’ by enacting a range of offences in relation to ‘terrorist acts’ and ‘terrorist organisations’. The broad reach of the offences, the vagueness of their definitions, and the absence of a mens rea requirement in some of them present the ready danger that they will be enforced according to the political views of the government, police and security agencies, rather than in strict accord with the long-standing principles of the criminal law. Opaque and shifting agendas are able to be served through vague perceptions of who is an ‘extremist’ and, specifically, who is a Muslim or Islamic ‘extremist’ (or ‘jihadist’). This clearly gives rise to the danger of discrimination on the basis of political, ideological and religious beliefs, especially for Muslim members of the Australian community.
These perils of Australian counter-terrorism laws—a preference for coercive measures, far-reaching and unspecific laws that do very little to protect Australian lives, and an acute risk of discrimination, especially against Muslims—are well illustrated by the sedition and censorship laws, the laws allowing the banning of ‘terrorist’ groups and the case of Jack Thomas.
Sedition and censorship laws
Part of the suite of criminal of offences enacted in late 2005 was a range of sedition offences. These offences criminalise various forms of advocacy, with most requiring that a person has urged the use of force or violence.(xxix) There is, however, no such requirement with two of the sedition offences. With no required nexus between speech and violence, these offences make it a crime intentionally to urge another person to engage in conduct that will merely ‘assist’ an organisation or country at war with Australia or engaged in armed hostilities against the Australian Defence Force (ADF).(xxx) For instance, academics calling on Arab countries to assist the Iraqi insurgents, engaged in armed hostilities with occupying forces (which include the ADF), to seek a cease-fire will likely be committing a sedition offence unless they can prove a ‘good faith’ defence.(xxxi) It is exceedingly difficult to see how such broadly drawn offences, so remote from the occurrence of violence, protect lives.
The government’s support for the sedition laws also reflects a preference for coercive measures in dealing with so-called ‘extremist’ views. According to the Attorney-General:
- We want to prevent them [fanatical extremists] from manipulating—and recruiting—vulnerable, impressionable Muslims to their extremist ideologies. Our ability to do this was strengthened by the sedition laws we passed last year amid an outcry they would somehow stifle freedom of speech. The laws are designed to capture activity which goes beyond criticising, but encourages the use of force or violence or other unlawful means to achieve a particular outcome.(xxxii)
These statements not only ignore how the sedition laws criminalise conduct that has no link to force and violence but also indicate a preference for dealing with ‘extremist’ views through criminal law. Such a preference endangers freedom of speech because it devalues the importance of debate in countering such views. Sidelined in the rush to adopt coercive measures is the insight recently expressed by the Australian Law Reform Commission in its report on the sedition laws, that ‘[t]he free exchange of ideas—however unpopular or radical—is generally healthier for a society than the suppression and festering of such ideas’.(xxxiii)
The government’s preference for coercive measures to deal with ‘extremist’ views is also illustrated by the ‘books of hate’ episode. In December 2005, the Classification Board classified two books written by Sheik Abdullah Azzam, Defence of the Muslim Lands and Join the Caravan, as ‘unrestricted’. These writings of Azzam, a mentor of Osama bin Laden, were mainly aimed at urging Muslims to oppose the Soviet invasion of Afghanistan. In response to an application by the Attorney-General, the Classification Review Board overturned the Classification Board’s decision and refused the books classification on the ground that they promoted, instructed or incited in matters of crime and violence.(xxxiv)
As a result, it is now illegal to make these books available.(xxxv) Besides its clear impact on freedom of speech and discussion, the utility of such censorship in preventing terrorism is also highly questionable. As Richard Pennell, an expert in Middle Eastern History at the University of Melbourne, has observed:
- The banning of these books is wrong in two ways. It will not stop jihadist terrorism, but it will prevent outsiders from trying to understand it.(xxxvi)
Hence, the preference for using coercive measures to address ‘extremist’ views through censorship laws lacks logic, not only because it unnecessarily erodes freedom of speech, but also because it risks being counter-productive.
Australia’s international human rights obligations require protection of the right to freedom of expression,(xxxvii) which includes the right to ‘impart information and ideas of all kinds’.(xxxviii) Enjoyment of this right carries with it ‘special duties and responsibilities’, which means that some restrictions are allowable, but they must be provided for by law and be ‘necessary’ for, inter alia, the protection of national security or public order.(xxxix) There are two points we would like to make here in relation to Australia’s new sedition and censorship laws. The first is that the condition that any limitations on the freedom of speech be ‘necessary’ imports a strictness that is missing from a number of the new laws. The requirement of necessity provides an important means of ensuring that the right is not destroyed by limitations. In response to a complaint about the freedom of expression in France, three members of the Human Rights Committee, which monitors the International Covenant on Civil and Political Rights (ICCPR), described the requirement of necessity in the following way:
- The restriction must be necessary to protect the given value [national security or public order]. The requirement of necessity implies an element of proportionality. The scope of the restriction imposed on freedom of expression must be proportional to the value which the freedom seeks to protect. It must not exceed that needed to protect that value.(xl)
There is serious doubt that the lack of a nexus between the prohibited speech in the Australian sedition offences and the urging of specific violence or conduct that may constitute ‘terrorism’ would meet the criteria of necessity. Likewise, the banning of books aimed at urging Muslims to resist the Soviet invasion of Afghanistan is hardly proportionate, when weighed against the crucial importance of the freedom of speech in a democratic society.
Our second point is that the limitations allowed by human rights law must be directed to certain purposes, notably, for present purposes, the protection of ‘national security’ or ‘public order’. National security refers to the political independence or territorial integrity of a state, and the government has not suggested that Australia is facing this level of risk, even in its most dire predictions. The concept of ‘public order’ comes closer to providing a justification for the new sedition and censorship laws, as it allows limitations on speech that may incite crime, violence or mass panic.(xli) Even so, a clear link is required between the speech that is limited and the threat that it presents to public order. It is hard to see how the breadth of the sedition offences and the wide coverage of the recent censorship classifications could be justified as necessary for public order. Finally, there is no clear link between these offences and the protection of the right to life, which is an individual human right that cannot be equated with collective protections associated with ‘public order’ or ‘national security’.
Banning of ‘terrorist’ groups
To date, 19 organisations have been listed as ‘terrorist organisations’ under the Criminal Code.(xlii) The exercise of the Criminal Code proscription power illustrates how some of Australian counter-terrorism laws have very little to do with protecting the lives of Australians. The Parliamentary Joint Committee on Intelligence and Security (PJIS) (previously named Parliamentary Joint Committee on ASIO, ASIS and DSD (PJAAD)) found no evidence that six of the 19 listed groups posed any threat to Australian interests. The six organisations are the Armed Islamic Group,(xliii) Jamiat ul-Ansar,(xliv) Ansar al-Islam, (xlv) Islamic Movement of Uzbekistan,(xlvi) Hamas Izz al-Din al-Qassam Brigades(xlvii) and Hizballah External Security Organisation.(xlviii)
Even for those found to pose a threat to Australian interests, the level of threat is not necessarily significant. For instance, three of listed groups, namely, Salafist Group,(xlix) Jaish-e-Mohammadl and the Kurdistan Workers’ Party,(li) were found to pose a threat only in the sense that Australians travelling to the countries in which these groups are based were exposed to a higher risk of violence. Not surprisingly, the PJIS has observed in relation to the listing of ‘terrorist organisations’ under the Criminal Code that ‘[o]n a number of occasions connections to Australia appeared to be tenuous’.(lii)
Significantly, of the 13 listed groups that were found pose a threat to Australian interests, only four—that is, al-Qaeda, Jemaah Islamiyyah, Abu Sayyaf Group and Lashkar-e-Tayyibba—posed a threat to domestic Australian interests. The rest posed a threat solely to Australian interests abroad. It is difficult to see how the Criminal Code ‘terrorist organisation’ provisions will meaningfully address an overseas threat. While these provisions have extra-territorial reach,(liii) they will, in practice, operate domestically. This aspect of the exercise of the Criminal Code proscription power illustrates again the mismatch between laws that operate domestically and an overseas threat.
Another aspect of Criminal Code proscription power that casts serious doubt on the government’s argument that counter-terrorism laws protect the right to life is the fact that most of the offences relating to ‘terrorist organisations’ can be committed without any conduct causing any harm or damage. Going further, most of these offences do not even require a link with harm or damage.
These features of the offences stem, firstly, from the broad definition of a ‘terrorist organisation’ as an organisation ‘directly or indirectly engaged in, preparing, planning, assisting in, fostering or advocating the doing of a terrorist act (whether or not the terrorist act has occurred or will occur’.(liv) This definition is not restricted to organisations whose principal activities are the promotion and engagement of extreme acts of ideological/religious or political violence. Hence, it captures groups that many would not consider ‘terrorist’ organisations. A ‘terrorist’ organisation can, for example, be an organisation which is predominantly involved in charitable work but is also indirectly involved in a ‘terrorist’ act.(lv)
Moreover, all except for one(lvi) of the ‘terrorist organisation’ offences do not require a link with a ‘terrorist act’, let alone any harm or damage. Take, for example, aid workers providing ‘first aid’ training to a predominantly charitable organisation they know has, on past occasions, engaged in an extreme act of ideological/religious or political violence; such workers would clearly be committing the offence of providing training to a ‘terrorist organisation’. It is no defence to this crime that the training was not related to a ‘terrorist act’. The crime is committed so long as training, whatever its content, is received or provided to a ‘terrorist’ organisation.(lvii) Hence, an aid worker providing training to movements such as Gerakan Aceh Merdeka in West Papua or the Tamil Liberation Tigers in Sri Lanka, groups known to have resorted to acts of ideological/political or religious violence, in the wake of the tsunami disaster, would definitely be culpable under this offence, despite having no direct involvement with such violence. Given that there is knowledge that the organisation is a ‘terrorist’ organisation, the aid worker in both scenarios faces the prospect of 25 years in jail.
While laws that allow the banning of such a broad range of groups clearly threaten the right to freedom of association,(lviii) and perhaps also impinge on the right to freedom of thought, conscience and religion, which includes the right to manifest one’s beliefs in community with others,(lix) the perhaps less obvious concern that we would like to highlight here is the right to ‘legality’. This right requires that governments ensure that everyone within their jurisdiction reasonably knows what is and is not a crime.(lx) Criminal conduct must be prescribed by national or international law in such a way that ‘the law is adequately accessible so that the individual has a proper indication of how the law limits his or her conduct; and the law is formulated with sufficient precision so that the individual can regulate his or her conduct’.(lxi) The wide range of conduct criminalised by association with a ‘terrorist’ group clearly does not satisfy this criterion. Many Australians now live in fear of committing an offence under the new legislation, simply by giving to religious charities (see further below) or associating with friends or relatives who may or may not be members of banned organisations. It is also hard to discern a link between these broad prohibitions and protection of the right to life.
The exercise of the Criminal Code proscription power also highlights the discriminatory application of Australian counter-terrorism laws, specifically, discrimination against Muslim communities. All but one of the listed ‘terrorist organisations’ are self-identified Muslim groups. According to representatives of Muslim organisations, this has resulted in a tangible sense of fear and uncertainty among their members, especially in relation to charity giving. For instance, Waleed Aly, a committee member of the Islamic Council of Victoria, has observed in relation to the financing of ‘terrorist organisation’ offence:
- This level of uncertainty in an offence this serious is deeply worrying. And for Australian Muslims, doubly so. Because charity is one of the five pillars on which Islamic practice is built, Muslims tend to be a charitable people. That is especially true at certain times of the Islamic year when charity is religiously mandated. Countless fund-raising efforts followed the tsunami and the Pakistan earthquake, and even in the normal course of events, Muslim charities regularly provide relief to parts of the Muslim world many other charities forget.(lxii)
Significantly, fear and uncertainty amongst Australian Muslims is not merely a result of the ‘terrorist organisation’ offences but a general result of the counter-terrorism laws. The most recent review of these laws, the Sheller Review, for instance, concluded that such laws have contributed to these citizens experiencing ‘a considerable increase in fear, a growing sense of alienation from the wider community and an increase in distrust of authority’.(lxiii) This is in the context of overwhelming evidence of daily acts of discrimination and violence against people in Australia perceived to be Arabic or Muslim and against women wearing head scarves.(lxiv)
Such discriminatory effects of the ‘War on Terror’ are of grave concern. The prohibition of discrimination lies at the very heart of international human rights law and discrimination can never be justified as an allowable limitation or derogation from the enjoyment of human rights, not even in the most serious of crises that threatens the life of a nation.(lxv) Australia’s international obligation to ensure that human rights are enjoyed without discrimination, including discrimination on racial and religious grounds,(lxvi) does not merely require that legislation be neutral on its face. It is required to take positive measures to ensure that discrimination is not experienced in fact or in substance.(lxvii)
If anything, many of the government’s statements, actions and policies seem to condone the prejudice that lies behind discriminatory conduct. For example, recent policy changes that require intending migrants to pass an English test have been justified in xenophobic terms. What is clearly absent are conscious and deliberate measures by the government to counter the discriminatory effects of its rhetoric of ‘War’ and the laws that it has justified as necessary to wage it.
The case of Jack Thomas
To date, the case of Jack Thomas has been the most prominent case under the new counter-terrorism laws. Thomas departed Australia in March 2001 for Pakistan and then travelled to Afghanistan. His time in Afghanistan included a three-month stint at the Al Farooq training camp, a camp operated by al-Qaeda, where Thomas undertook paramilitary training. In late 2002, Thomas went to Pakistan where he stayed at several safe-houses operated by al-Qaeda and was subsequently apprehended by the Pakistani immigration officials in January the next year. This resulted in Thomas being detained and interrogated by a range of security and police agencies including the AFP and ASIO. Thomas was eventually released in June 2003 and returned to Australia where he remained free for 17 months.(lxviii)
Then, in November 2004, he was charged with various offences including receiving funds from a ‘terrorist organisation’, namely al-Qaeda, and providing support to al-Qaeda for the purpose of assisting it to engage in a ‘terrorist act’.(lxix) In February this year, Thomas was acquitted of the second charge but convicted of the first, resulting in the first conviction under the new counter-terrorism laws.(lxx) Six months later, the Victorian Court of Appeal quashed his conviction on the basis that the confession central to the conviction was inadmissible, firstly, because it was involuntary and, secondly, because admitting the confession would be contrary to public policy.(lxxi) Barely a week after this decision was handed down, the first control order was issued, with Federal Magistrate Mowbray granting the AFP’s application for an interim control order that imposed upon Thomas reporting obligations, restrictions on his communications and a curfew requiring Thomas to remain at his residence between midnight and 5 a.m. every day.(lxxii)
The control order regime is now subject to a constitutional challenge which is due to be heard by the High Court in early December 2006.(lxxiii) Thomas will also be retried on the basis of statements he gave in an interview to the ABC’s Four Corners television program.(lxxiv)
The Thomas case raises many complex and challenging issues for the protection of human rights. In the opening paragraphs of its decision ruling that the confession made by Thomas in Pakistan was inadmissible, the Court of Appeal emphasised that ‘[n]o question has arisen with respect to the truthfulness or reliability of those statements’.(lxxv) In his interview with Four Corners, Thomas made statements consistent with the content of the inadmissible confession. This raises the long-standing and vexed question: should confessions obtained under conditions of duress be admissible when there is evidence of its truthfulness?(lxxvi)
The Thomas case also illustrates how the new counter-terrorism laws have put in place a two-track system of dealing with persons suspected of ‘terrorist’ activity, with the established criminal justice system operating side by side with regulatory regimes allowing the grant of control and preventative detention orders. The implications of this dual system for the protection of human rights have yet to be fully worked out.
It is beyond this essay to deal with these difficult issues. It is apparent, however, that the Thomas case illustrates how the new counter-terrorism laws apply even when there is no proof of violent intention. As noted earlier, Thomas was initially convicted of receiving funds from a ‘terrorist organisation’, namely al-Qaeda, but acquitted of providing support to al-Qaeda for the purpose of assisting it to engage in a ‘terrorist act’.(lxxvii)
His acquittal on the second charge clearly meant that the jury could not find beyond reasonable doubt that Thomas had any intention to help al-Qaeda to commit a ‘terrorist act’. Such a finding did not, however, save Thomas from his initial conviction on the ground of receiving funds from a ‘terrorist organisation’. This offence can be committed regardless of the use to which the funds are put. With his acquittal of the charge of supporting a ‘terrorist organisation’, the jury presumably were not convinced beyond reasonable doubt that Thomas intended to use the funds to engage in a ‘terrorist act’. Nevertheless, mere receipt of such funds from al-Qaeda can be the basis for conviction. Therefore, even if the retrial results in Thomas being convicted of receiving funds from al-Qaeda, this does not make him a terrorist in the sense of a person with an intention to commit an act of politically motivated violence.
Neither was proof of violent intention necessary for the grant of the interim control order against Thomas. In issuing the order against Thomas, Federal Magistrate Mowbray stated that he was satisfied that the relevant statutory criteria for issuing it were met.(lxxviii) In particular, he said that he was satisfied, on the balance of probabilities, that the order would substantially assist in preventing a terrorist act and that Thomas received training from a listed terrorist organisation, namely, al-Qaeda. The magistrate also stated that he was satisfied on the balance of probabilities that each of the obligations imposed by the order was reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act.(lxxix)
The magistrate gave three reasons for reaching this state of satisfaction. First, Thomas’ training with al-Qaeda meant that he is ‘now an available resource that can be tapped into to commit terrorist acts on behalf of Al Qai’ida or related terrorist cells [because the] [t]raining has provided Mr Thomas with the capability to execute or assist with the execution directly or indirectly of any terrorist acts.’(lxxx) Second, according to the magistrate, ‘Mr Thomas is vulnerable … [and] may be susceptible to the views and beliefs of persons who will nurture him during his reintegration into the community’ and, in particular, his ‘links with extremists such as Abu Bakir [sic] Bashir … may expose and exploit Mr Thomas’ vulnerabilities’.(lxxxi) The third ground for issuing the interim control order was that ‘the mere fact that Mr Thomas has trained in Al Qai’da training camps, and associated with senior Al Qai’da figures … is attractive to aspirant extremists who will seek out his skills and experiences to guide them in achieving their potentially extremist objectives’.(xxxii) In summary, these circumstances, according to Federal Magistrate Mowbray, meant that Thomas ‘could provide a potential resource for the planning or preparation of a terrorist act’.(lxxxiii)
The reasons given by the magistrate were based on speculations as to the risk that Thomas may pose. In the words of the magistrate, Thomas is a ‘potential resource’ and he ‘may be susceptible to the views’ of others like Abu Bakar Bashir. Importantly, the supporting evidence tendered by the applicant directed to these issues partly rested on an argument that Thomas’ views were similar to others with ‘extremist views’. Disturbingly, opposition to the invasion of Iraq was cited as one of such views. In the examination-in-chief of the applicant, AFP Commander Ramzi Jabbour, his counsel asked him:
- And those that espouse the extreme form of Islam you’ve spoken about, and have a view about atrocities committed by the West around the world, do they, in your experience, have a view about Australia’s involvement with coalition forces in Iraq, for example?(lxxxiv)
In response, Commander Jabbour stated that:
- We are certainly aware, from some persons that are currently in custody, that they certainly did not support the Australian government’s involvement in Iraq, also in Afghanistan, and this was one of the motivations for them to carry out or plan for a terrorist act in this country.(lxxxv)
These speculative grounds for issuing the interim control order clearly do not rest upon Thomas having a violent intention or, more specifically, an intention to commit a ‘terrorist act’. For instance, one of grounds for issuing the interim control order was that ‘aspirant extremists’ might seek out Thomas. This ground rests on the intentions of these ‘extremists’ and not any intention on the part of Thomas. Indeed, the applicant for the interim control order, Commander Jabbour, and his counsel both stated that there was no evidence that Thomas was contemplating any ‘terrorist act’.(lxxxvi) The gravamen of their case was that Thomas nevertheless posed a risk of a ‘terrorist act’.
Moreover, it appears that the risk of a ‘terrorist act’ posed by Thomas or, for that matter, any person subject to a control order, need not be significant. In the hearings, senior counsel for Commander Jabbour submitted that in order for the statutory criterion of ‘substantially assist in preventing a terrorist act’ to be met, it was not necessary ‘to show that the terrorist act or the particular conduct is likely or not to happen’ [emphasis added].(lxxxvii) In particular, there was no need to demonstrate ‘a substantial likelihood that a terrorist act will occur’ or ‘an imminent terrorist attack’.(lxxxviii) In fact, the example given by the senior counsel to illustrate the point submitted that the risk of a ‘terrorist act’ could be quite small. In his words:
- If one’s out in the country and there’s a quiet country road, clearly looking right and left, will substantially assist in preventing being hit by a car, but there is a reasonably small chance that this would occur [emphasis added].(lxxxix)
While the magistrate did not expressly endorse the undemanding standards advanced by the applicant, his decision, in substance, adopted key elements of the applicant’s submission. This is apparent from the fact that the magistrate did not discuss the likelihood of a ‘terrorist act’ occurring in determining whether the interim control order would ‘substantially assist in preventing’ such an act.(xc) It can be reasonably inferred from this that the magistrate believed, as submitted by the applicant, that whether or not such an act is ‘likely or not to happen’ was not central to granting a control order. Similarly, the magistrate appeared to accept the applicant’s submission that there was no need to demonstrate ‘a substantial likelihood that a terrorist act will occur’ or ‘an imminent terrorist attack’, as nowhere in the magistrate’s decision is there any discussion of these issues.
The type of reasoning adopted by the magistrate is likely to mean that the restrictions on personal liberty imposed by control orders will be sanctioned, even when the chance of a ‘terrorist act’ is minimal. In this situation, where individual rights and freedoms are at risk of severe restriction, international human rights law, as we have already discussed, requires the application of clear and specific criteria to ensure that any limitations are strictly determined by the exigencies of the situation. The magistrate’s reasoning may very well involve a balancing exercise, but one where the scales are tilted so far in favour of preventing a risk of a ‘terrorist act’. Such imbalance seems completely disproportionate and unnecessary, and hardly ‘a blow in favour, and not a blow against, civil liberties’.(xci)
The emergence of an alternative model through the work of international bodies
Countering terrorism is clearly not just a domestic issue and nor is it limited to those people and events connected with the terrorist acts that occurred on 11 September 2001 in the United Sates of America. There was already an international framework for countering terrorism when the events of 11 September occurred, including 12 multilateral treaties that sought to promote international cooperation between states to prevent and respond to terrorism,(xcii) and various obligations and directives imposed by resolutions of the UN Security Council,(xciii) General Assembly(xciv) and Commission on Human Rights. Although these initiatives treated terrorism as a crime, there was never any suggestion that extraordinary measures were required that would unsettle the human rights safeguards long deeply entrenched in the ordinary criminal law. The agreements were primarily concerned to put in place international and domestic arrangements that would prevent and suppress terrorist acts and ensure that terrorist suspects were duly tried and punished when appropriate. The most significant human rights initiative associated with these efforts was the appointment in 1996 of an Independent Expert, Kalliopi Koufa, to prepare a working paper on the question of terrorism and human rights for the UN Sub-Commission on the Promotion and Protection of Human Rights.(xcv) The following year, Koufa was appointed as Special Rapporteur to conduct a comprehensive study.(xcvi)
As Koufa observed in her 2002 report, unprecedented levels of anti-terrorist action took place within the UN system immediately following 11 September 2001, but much of in the absence of a human rights analysis.(xcvii) There were some notable exceptions, among which a resolution of the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO), adopted on 20 October 2001, stands out for its holistic, inclusive, non-coercive and human rights approach.(xcviii) The resolution calls for ‘a coherent and coordinated response by the organisations of the UN system as a whole’ and rejects ‘the association of terrorism with any particular religion, religious belief or nationality’.(xcix) It goes on:
- Noting that intolerance, discrimination, inequality, ignorance, poverty and exclusion, among others, provide fertile ground for terrorism, [the General Conference of UNESCO] affirms that while acts of terrorism can never be justified whatever the motives, the world community requires a global and inclusive vision of development based on the observance of human rights, mutual respect, intercultural dialogue and the alleviation of poverty, found on justice, equality and solidarity, to meet the needs of the most vulnerable populations and segments of society.(c)
Thankfully, since the early days after 11 September 2001, there has been a discernable movement across the UN towards embracing the broader vision of the UNESCO General Conference. We will trace some of this movement by looking at the work of the human rights treaty bodies, the special procedures of the Commission on Human Rights (which has recently been replaced by the Human Rights Council), and the Security Council’s Counter-Terrorism Committee (CTC). We conclude that it is hard to perceive any parallel developments in the anti-terrorism policies and practices of the Australian Government.
The treaty bodies monitoring the human rights treaties were quick to realise that the so-called ‘War on Terror’, with its focus on coercive and pre-emptive measures, was going to prove threatening to many fundamental human rights. Between them, they have identified a wide range of rights that are under pressure due to national counter-terrorism measures adopted since 11 September 2001, including those we have discussed in the Australian context: freedom of thought, conscience and religion; freedom of expression and assembly; respect for the principle of legality; and freedom from discrimination.(ci)
The Human Rights Committee has been the most active because all of these rights are protected by the ICCPR, and it now routinely discusses the compatibility of ant-terrorism measures with ICCPR obligations when it reviews states parties’ periodic reports.(cii) Its General Comment on allowable derogations during states of emergency, adopted in August 2001, has become a critical tool for insisting that ‘public emergencies’ are defined narrowly according to clear criteria, and that any derogation from ICCPR obligations is understood to be exceptional and temporary, and ‘limited to the extent strictly required by the exigencies of the situation’.(ciii) The Human Rights Committee has also continued to emphasise the non-derogable or absolute character of many of the threatened rights, such as the right to be free from torture and cruel, inhuman or degrading treatment and punishment, the principle of legality in the field of criminal law, freedom of thought, conscience and religion, and the right to non-discrimination.
In the aftermath of 11 September, both the Committee Against Torture(civ) and the Committee on the Elimination of Racial Discrimination(cv) issued general statements, voicing their concerns about the potential for counter-terrorism measures to violate provisions of the treaties they monitor.(cvi) The CERD statement emphasises that the prohibition of racial discrimination is a peremptory norm, which must be observed in all matters. That is, anti-terrorism measures must ‘not discriminate in purpose or effect on grounds of race, colour, descent, or national or ethnic origin’.(cvii) Both the Committee on the Elimination of Racial Discrimination and the Human Rights Committee have drawn new attention to non-citizens, stressing that states parties’ international human rights obligations extend to non-citizens within their jurisdiction, with the latter emphasising that this includes places outside the territory of the state where the state party exercises ‘effective control’.(cviii) The Committee on the Rights of the Child(cix) has also expressed some concerns about the detention and prosecution of children as a result of anti-terrorism measures.(cx) When put together, the monitoring of anti-terrorism measures by the human rights treaty bodies, while focussed on promoting compliance with their respective treaties and therefore not comprehensive, provides an increasingly important means of drawing attention to the restricted and non-discriminatory character of the derogations and limitations allowed by human rights law, and the need to provide specific justification for them.
The special procedures (special rapporteurs, working groups and independent experts) of the Commission on Human Rights have also emerged as an important means of identifying problems, clarifying the law and pressing for human rights compliance in the aftermath of 11 September. An unprecedented joint statement, issued by 17 of the commission’s rapporteurs and experts on 10 December 2001, expressed concern that measures were being contemplated or adopted which may infringe on the enjoyment of human rights and fundamental freedoms, reminding states of the rules attending derogations and limitations, and the need to strike a ‘fair balance’ between legitimate security concerns and respect for human rights.(cxi) A joint statement issued at the 2003 annual meeting of the special procedures, while acknowledging the need to counter terrorism, also expressed ‘profound concern at the multiplication of policies, legislations and practices increasingly being adopted by many countries in the name of the fight against terrorism, which negatively affect the enjoyment of virtually all human rights’.(cxii)
In 2004, the appointment of an Independent Expert to assist the UN High Commissioner for Human Rights to complete her study on the extent to which treaty bodies and special procedures are able to address the compatibility of national counter-terrorism measures with international human rights obligations marked a further step towards strengthening and consolidating this work.(cxiii) Then, in 2005, in a watershed decision, the Commission on Human Rights appointed a Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, to work in close coordination with other special procedures, make concrete recommendations and develop regular dialogue with all relevant actors including governments, UN bodies and agencies, and non-government organisations.(cxiv)Martin Scheinin, the new Special Rapporteur, makes some important observations on the issue of defining ‘terrorism’ in his first report.(cxv) He is concerned that the lack of a precise definition of ‘terrorism’ carries the potential for its misuse, arguing that it needs to be confined in its use to ‘conduct that is genuinely of a terrorist nature’.(cxvi) He proposes three conditions that should cumulatively be met before conduct is criminalised as a terrorism offence. They include an act committed with the intention to caused death or serious bodily injury; for the purpose of provoking a state of terror; which also constitutes an offence within the scope of international conventions relating to terrorism.(cxvi) He also proposes that criminalisation of ‘conduct in support of terrorist offences’ be restricted to conduct in support of offences having these three characteristics.(cxviii) This is obviously crucial work that provides a useful standard against which to assess the vagueness of many of Australia’s terrorism offences.
We turn, now, to the Security Council and its CTC. The council was the first UN organ to act formally following the attacks on 11 September. On 28 September 2001, Resolution 1373 was adopted under Chapter VII of the UN Charter, which made it binding on all UN member states. The resolution requires states to adopt criminal sanctions and strict financial and administrative measures, aimed at individuals and organisations that are involved in terrorism, or supportive of it, and Australia has defended its laws as being in compliance with these obligations. The CTC, consisting of all members of the Security Council, was established by the resolution to monitor its implementation. All states had to make a report to the CTC within 90 days on the steps they had taken towards implementation, and thereafter provide further reports according to a timetable determined by the CTC. Resolution 1373 made no reference to states’ obligations pursuant to human rights law.(cxix) The then UNHCHR, Mary Robinson, was quick to draw attention to this omission, expressing concern about the impact the resolution may have on human rights. She had her office prepare a guide for the CTC on implementing Resolution 1373 in compliance with international human rights standards, which she hoped would be officially adopted and circulated, but the CTC merely placed it on its website.(cxx) Meanwhile, the first chair of the CTC, UK Ambassador Sir Jeremy Greenstock, had expressed the committee’s policy on human rights in the following way:
- The Counter-Terrorism Committee is mandated to monitor the implementation of resolution 1373 (2001). Monitoring performance against other international conventions, including human rights law, is outside the scope of the Counter-Terrorism Committee’s mandate. But we will remain aware of the interaction with human rights concerns, and we will keep ourselves briefed as appropriate. It is, of course, open to other organizations to study States’ reports and take up their content in other forums.(cxxi)
This was surely a new low point for the status of international human rights law in the UN system.
It was not until Resolution 1456, adopted on 20 January 2003, that the Security Council took the first step towards at least formally rectifying the situation. Resolution 1456 required states to ensure that counter-terrorism measures comply with all their obligations under international law, in particular human rights law, international humanitarian law and refugee law.(cxxii) In this resolution, the Security Council also emphasised the importance of ‘continuing efforts to enhance dialogue and broaden the understanding among civilisations, in an effort to prevent indiscriminate targeting of different religions and cultures … and to address … the full range of global issues, including development issues’ in order to counter terrorism.(cxxiii) Positive as these developments were, the CTC continued to do little, if anything, actively to promote compliance with international human rights standards.(cxxiv) The next advance in this slow progression was the council’s decision to revitalise the CTC through the establishment of a CTC Executive Directorate (CTED) in 2004.(cxxv) The revitalisation plan committed CTED to upgrading the CTC’s ‘dialogue’ with the Office of the UNHCHR to regular ‘liaison’ with it and other human rights organisations. Then, after continued lobbying, a post for a senior human rights officer was created in CTED, which was filled in July 2005. The UN High Commissioner for Human Rights reports in 2006 that the CTC is ‘now considering practical ways to take human rights concerns into account in the course of its ongoing activities’.(cxxvi)
In the light of these developments, it seems clear that the approach of the Australian Government has become increasingly out of step with international policies and practices, in addition to the arguments that we make earlier that some of its specific measures may violate its obligations under international human rights law. The government’s preference for coercive measures, vaguely defined offences, broadly framed justifications and lack of attention to the discrimination and fear that its measures are engendering seems, if anything, to be becoming more firmly entrenched. As to why this is happening, unfortunately we do not have space here to develop our thoughts. However, we are afraid that it suggests a possible alliance with US efforts to use the ‘War on Terrorism’ to redesign the international legal regime so that there are fewer constraints on states when it comes to embarking on such ‘wars’.(cxxvii) Further, it suggests a deep malaise in the Australian community when it comes to the type of values that UNESCO proposed were necessary to inspire responses to terrorism: ‘the values of tolerance, universality, mutual understanding, respect for cultural diversity, and the promotion of a culture of peace’.(cxxviii)
The UN Secretary-General has recently said that ‘respect for human rights was not only compatible with a successful counter-terrorism strategy, but was an essential element of it’.(cxxix) The federal government may very well agree with this statement by contending that its counter-terrorism laws protect the right to life. Yet its approach being shaped by the notion of a ‘War on Terror’, without due attention to its human rights implications, seriously undermines its position. Resting upon a preference for coercive measures, a bald assertion that such measures protect lives and a serious neglect of the discriminatory effect of its counter-terrorism measures, the government’s approach endangers the protection of human rights and undermines its purported agenda to counter terrorism.
An alternative and preferable approach is emerging from the work of the UN and international human rights treaty bodies. It is an approach that insists upon precisely drafted criminal offences, a clear definition of ‘terrorism’ and transparent criteria for banning organisations and books and imposing control orders, and gives priority to ensuring that discrimination does not flow from any measures adopted. As proposed by UNESCO, it urges that the problem of terrorism be understood in its broader context and addressed primarily by non-coercive and inclusive measures founded on the principles of justice, equality and solidarity. In Australia, we urgently need to find ways to give voice to this approach and have it implemented.
(*) Law Faculty, University of Melbourne. Paper to be presented at Human Rights 2006: The Year in Review Conference, CUB Malthouse, Melbourne, 1 December 2006.
(i) Before the 11 September attacks, federal laws did not criminalise ‘terrorism’ as such. See generally Ben Golder & George Williams, ‘What is ‘terrorism’?: Problems of legal definition’ University of New South Wales Law Journal, vol. 27, no. 2, 2004, p. 271.
(ii) While the definition of a ‘terrorist act’ excludes ‘industrial action’ (Criminal Code Act s. 100.1), this is unlikely to afford any protection to picketing which has been found not to be ‘industrial action’ under the Workplace Relations Act 1996 (Cth): Davids Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550 at 575 per Wilcox and Cooper JJ (with whom Burchett J agreed at 586). For commentary on this case, see John Howe, ‘Picketing and the statutory definition of “industrial action’’ ’, Australian Journal of Labour Law, vol. 13, 2000, pp. 84–91.
(iii) Criminal Code, s. 101.4. For an analysis of the ‘terrorism’ offences, see Bernadette McSherry, ‘Terrorism offences in the Criminal Code: Broadening the boundaries of Australian criminal laws’, University of New South Wales Law Journal, vol. 27, no. 2, 2004, p. 354; Edwina McDonald & George Williams, ‘Combating terrorism: Australia’s Criminal Code since September 11’, Paper presented at 10th International Criminal Law Congress, Perth, 19 October 2006.
(iv) See text below accompanying nn. 29–36.
(v) There is also the ability to proscribe groups as ‘terrorist’ entities under the Charter of the United Nations Act 1945 (Cth) and the Charter of the United Nations (Terrorism and Dealings with Assets) Regulations 2002 (Cth).
(vi) 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 Joo-Cheong Tham, ‘Possible constitutional objections to the powers to ban “terrorist” organisations’, University of New South Wales Law Journal, vol. 27, 2004, pp. 484–509.
(vii) For a detailed analysis of the Anti-Terrorism Bill (No. 2) 2005 (Cth), see Senate Legal and Constitutional Legislation Committee, Commonwealth Parliament. Provisions of the Anti-Terrorism Bill (No. 2) 2005, 2005 and Sue Harris et al., Anti-Terrorism Bill (No. 2) 2005: Parliamentary Library Bills Digest No. 64/2005-06 (2005). For an earlier analysis of the government’s proposals, see Agnes Chong et al., Laws for Insecurity? A Report on the Federal Government’s Proposed Counter-Terrorism Measures, 2005, http://www.amcran.org, accessed on 26 January 2006.
(viii) Criminal Code ss. 102.1(1A), 102.1(2)(b). This amendment was inserted by the Anti-Terrorism Act (No. 2) 2005 (Cth).
(ix) Division 3, Part II, Australian Security Intelligence Organization Act 1979 (Cth). A recent analysis of these powers can be found in Parliamentary Joint Committee on ASIO, ASIS and DSD (PJAAD), Commonwealth Parliament, 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’, University of New South Wales Law Journal, vol. 27, no. 2, 2004, p. 524.
(x) Anti-Terrorism Act (No. 2) 2005 (Cth) Schedule 4.
(xii) Robert Cornall, Secretary, Attorney-General’s Department, ‘Australian Government initiatives and policy directions after the London bombings 2005’ (Speech delivered to Safeguarding Australia 2006 Conference, Canberra, 19 September 2006).
(xiii) Lodhi v R  NSWCCA 121 (Unreported, Spigelman CJ, McClellan CJ at CL, Sully J), para. 66 (Spigelman CJ).
(xiv) Michelle Grattan & Brendan Nicholson, ‘Should we be afraid of the terror laws?’, Age (Melbourne), 17 October 2005.
(xv) Commonwealth, Parliamentary Debates, House of Representatives, 21 March 2002, 1932 (Daryl Williams MP, Attorney-General).
(xvi) Australian Government, Transnational Terrorism: The Threat to Australia Commonwealth of Australia, 2004, www.dfat.gov.au/publications/terrorism, accessed on 23 August 2006.
(xvii) Attorney-General Philip Ruddock, ‘A safe and secure Australia: An update on counter-terrorism’ (Speech delivered at Manly Pacific Hotel, Sydney, 21 January 2006).
(xviii) Prime Minister John Howard, ‘Address to the ASPI Global Forces 2006 Conference—Australia’s Security Agenda’ (Speech delivered at the ASPI Global Forces 2006 Conference, Hyatt Hotel, Canberra, 26 September 2006).
(xx) Attorney-General Phillip Ruddock, loc. cit.
(xxi) See National Counter-Terrorism Committee Communiqué, 8 July 2005, http://www.nationalsecurity.gov.au/agd/WWW/nationalsecurityHome.nsf/Page/RWP94CAF198B3B53A9ACA257038001A4861, accessed 15 September 2005.
(xxii) See http://www.nationalsecurity.gov.au/agd/www/NationalSecurityHome.nsf/Page/RWP76C5554A184DBF2BCA256D420012BA76?OpenDocument, accessed 15 September 2005.
(xxiii) Allan Behm, Submission to the Senate Legal and Constitutional Committee’s Inquiry into the Anti-Terrorism (No. 2) Bill 2005, 2005, p. 4.
(xxiv) Attorney-General Philip Ruddock, ‘Opening Address to the Security in Government Conference’ (Speech delivered at Security in Government Conference, National Convention Centre, Canberra, 9 May 2006).
(xxvi) Attorney-General Philip Ruddock, ‘Opening Address: 2005 National Security Forum (Speech delivered at 2005 National Security Forum, Sydney Convention and Exhibition Centre, Darling Harbour, 21 February 2005).
(xxvii) As quoted in N. MacMaster, ‘Torture: From Algiers to Abu Ghraib’, Race and Class, vol. 46, no. 1, p. 4.
(xxviii) AFP, Annual Report 2004–05, 2005, p. 19.
(xxix) Criminal Code ss. 80.2(1)–(6).
(xxx) ibid., ss. 80.2(7)–8).
(xxxi) ibid., s. 80.3. There is also the exception for providing aid of a humanitarian nature (ibid., s. 80.2(9)).
(xxxii) Attorney-General Philip Ruddock, ‘Opening address to the Security in Government Conference’, ibid.
(xxxiii) Australian Law Reform Commission, Fighting Words: A Review of Sedition Laws in Australian, ALRC Report 104, 2006, p. 10.
(xxxiv) An excellent account of this episode is found in Norman Abjorensen, Strike up the Ban: Censor Joins the War on Terrorism: Democratic Audit of Australia Discussion Paper 26/06, 2006, http://www.democratic.audit.anu.edu.au, accessed on 23 October 2006. The decision of the Classification Review Board is now subject to an appeal to the Federal Court because of a judicial review application brought by the New South Wales Council of Civil Liberties: Mark Dunn, ‘Uni bans books on jihad’, Herald Sun, 14 September 2006, p. 9.
(xxxv) See, for example, Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW) Part 3; Classification (Publications, Films and Computer Games) Enforcement Act 1995 (Vic.) Part 3.
(xxxvi) C R Pennell, ‘The war on books on terrorism’, Herald Sun, 21 September 2006, p. 25.
(xxxvii) International Covenant on Civil and Political Rights (ICCPR), Art. 19(2).
(xxxviii) Human Rights Committee, General Comment 10, para. 2.
(xxxix) ICCPR, Art. 19(3)(b).
(xl) Fauisson v France (550/93), Separate Opinion of Mrs Evatt, Mrs Quiroga Medina and Mr Klein, para. 8.
(xli) Sarah Joseph et al., The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary, Oxford: Oxford University Press, 2nd edn, 2004, p. 530.
(xlii) Criminal Code Regulations 2002 (Cth).
(xliii) PJAAD, Review of the Listing of Six Terrorist Organisations, March 2005, para. 3.26.
(xliv) ibid., para. 3.35.
(xlv) PJAAD, Review of the Listing of Seven Terrorist Organisations, 2005, paras 3.14–3.17.
(xlvi) ibid., para. 3.83.
(xlvii) PJAAD, Review of the Listing of Four Terrorist Organisations, 2005, para. 3.37.
(xlviii) ibid., para. 3.64.
(xlix) PJAAD, Review of the Listing of Six Terrorist Organisations, para. 3.40.
(l) PJAAD, Review of the Listing of Seven Terrorist Organisations, para. 3.62.
(li) PJAAD, Review of the Listing of the Kurdistan Workers’ Party (PKK), April 2006, paras 2.43–2.52.
(lii) PJAAD, Annual Report of Committee Activities 2005–2006, 2006, para. 2.10.
(liii) Criminal Code s. 102.9.
(liv) ibid., s. 102.1(2)(a). This power was conferred by the Criminal Code Amendment (Terrorist Organisations) Act 2004 (Cth).
(lv) Criminal Code s. 102.1.
(lvi) The exception is found in s. 102.7 of the Criminal Code which makes it illegal to provide support to a ‘terrorist organisation’ to assist it in engaging in a ‘terrorist act’.
(lvii) ibid., s. 102.5. For an excellent discussion of the training offences, see Patrick Emerton, ‘Paving the way for conviction without evidence—a disturbing trend in Australia’s “anti-terrorism” laws’, Queensland University of Technology Law Journal. vol. 4, no. 1, 2004, pp. 5–14.
(lviii) ICCPR, Art. 22.
(lix) ICCPR, Art. 18. Note Art. 4(2) which specifies that this right is not derogable in times of public emergency.
(lx) ICCPR, Art. 15(1).
(lxi) Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, E/CN.4/2006/98, 28 December 2005, para. 46.
(lxii) Waleed Aly, ‘Reckless terror law threatens to make charity end at home’, Age (Melbourne), 29 November 2005, p. 15.
(lxiii) Security Legislation Review Committee, Report of the Security Legislation Review Committee, 2006, p. 5. For similar findings, see Human Rights and Equal Opportunity Commission, Isma—Listen: National Consultations on Eliminating Prejudice against Arab and Muslim Australians, 2004, pp. 67–9.
(lxiv) For example, the Equal Opportunity Commission of Victoria, Annual Report 2005/2006, 2006, documents a case where a Muslim man was repeatedly called a ‘terrorist’ and ‘Chemical Ali’ (ibid., p. 17). It also describes a case where a young Muslim woman was subject to workplace taunts because she wore a hijab (ibid., p. 31).
(lxv) ICCPR, Art. 4(1).
(lxvi) See, for example, ICCPR, Art. 2(1).
(lxvii) HRC, General Comment 18, ‘Non-Discrimination’, 1989.
(lxviii) The facts are found in DPP v Thomas  VSC 120 (Unreported, Cummins J, 31 March 2006, paras 1–3); R v Thomas  VSCA 165 (Unreported, Maxwell P, Buchanan and Vincent JJA, 18 August 2006).
(lxix) Stephen Moynihan, ‘Jihad Jack, the man bin Laden wanted on call in Australia’, Age (Melbourne), 25 November 2004, pp. 1–2; Criminal Code ss. 102.6 (receiving funds from or providing funds to a ‘terrorist organisation’), 102.7 (providing support to a ‘terrorist organisation’).
(lxx) DPP v Thomas  VSC 120 (Unreported, Cummins J, 31 March 2006). See also Ian Munro, ‘Islam’s warrior’, Age (Melbourne), 27 February 2006, p. 11. Thomas appealed this decision to the Court of Appeal of the Victorian Supreme Court. This appeal was heard on 24 July 2006 with a decision expected later this year; see Ian Munro, ‘Thomas’ prison treatment “disgraceful” ’, Age (Melbourne), 19 May 2006, p. 6.
(lxxi) R v Thomas  VSCA 165 (Unreported, Maxwell P, Buchanan and Vincent JJA, 18 August 2006).
(lxxii) Jabbour v Thomas (Interim control order, Federal Magistrate Mowbray, Canberra, 27 August 2006, Schedule 1).
(lxxiii) Ian Munro, ‘Thomas challenge to control order’, Age (Melbourne), 3 October 2006, p. 2. Because of the constitutional challenge, proceedings for confirming the interim control order have been adjourned (see Criminal Code, s. 104.14).
(lxxiv) Australian Broadcasting Corporation, ‘The convert’, Four Corners, 27 February 2006, http://www.abc.net.au/4corners/content/2006/s15802223.htm, accessed on 29 September 2006.
(xxv) R v Thomas  VSCA 165 (Unreported, Maxwell P, Buchanan and Vincent JJA, 18 August 2006, para. 4).
(lxxvi) See, for example, Andrew Ligertwood, Australian Evidence: Cases and Materials, Butterworths, Sydney, 1995, p. 819; Jeremy Gans & Andrew Palmer, Australian Principles of Evidence, 2nd edn, Cavendish Publishing Australia, Sydney, 2004, p. 479; Stephen Odgers, Uniform Evidence Law, 6th edn, Law Book Company, Sydney, 2004; Peter Waight & Bob Williams, Evidence: Commentary and Materials, 6th edn, Law Book Company, Sydney, 2002, p. 700.
(lxxvii) Thomas’ acquittal on this charge is perhaps unsurprising. A case note prepared by an AFP officer based on the confession made by Thomas in Pakistan stated that Thomas ‘did receive funds from a terrorist organisation; he (arguable) (sic) was a member of al Qaeda’. No mention was made in this note of charging Thomas for providing resources to al-Qaeda for the purpose of assisting it to engage in a ‘terrorist act’: see R v Thomas  VSCA 165 (Unreported, Maxwell P, Buchanan and Vincent JJA, 18 August 2006, para. 41).
(lxxviii) Criminal Code, s. 104.4.
(lxxix) Jabbour v Thomas  FMCA 1286 (Unreported, Federal Magistrate Mowbray, Canberra, 27 August 2006, Attachment 1).
(lxxx) ibid., Schedule 2, para. 2.
(lxxxi) ibid., Schedule 2, para. 3.
(lxxxii) ibid., Schedule 2, para. 4.
(lxxxiii) ibid., Schedule 2, para. 5.
(lxxxiv) Transcript of Proceedings, Jabbour v Thomas (Federal Magistrates Court, Federal Magistrate Mowbray, 26 August 2006, p. 38) (AFP Commander Ramzi Jabbour, Manager, Counter Terrorism Domestic).
(lxxxvi) ibid., p. 42; Transcript of Proceedings, Jabbour v Thomas (Federal Magistrates Court, Federal Magistrate Mowbray, 25 August 2006, p. 3 (A Berger, counsel for applicant, Ramzi Jabbour).
(lxxxvii) Transcript of Proceedings, Jabbour v Thomas (Federal Magistrates Court, Federal Magistrate Mowbray, 26 August 2006, p. 11 (H Burmester, senior counsel for applicant, Ramzi Jabbour).
(lxxxviii) ibid., p. 11.
(lxxxix) ibid., p. 12.
(xc) See Jabbour v Thomas  FMCA, p. 1286 (Unreported, Federal Magistrate Mowbray, Canberra, 27 August 2006, paras 42–5).
(xci) Prime Minister John Howard, loc.cit.
(xcii) See, for example, International Convention for the Suppression of Terrorist Bombings (1997), entered into force 23 May 2001; International Convention for the Suppression of the Financing of Terrorism (1999), entered into force 10 April 2002.
(xciii) See, in particular, Security Council Res. 1269, 1999.
(xciv) Among the many initiatives of the General Assembly, GA Res. 51/210, 17 December 1996, established an ad hoc committee to elaborate a comprehensive convention on international terrorism. This work was reactivated following 11 September.
(xcv) Working Paper on the question of terrorism and human rights, E/CN.4/Sub.2/1997/28.
(xcvi) Preliminary Report of the Special Rapporteur on the question of terrorism and human rights, E/CN.4/Sub.2/1999/27; First Progress Report of the Special Rapporteur on the question of terrorism and human rights, E/CN.4/Sub.2/2001/31.
(xcvii) Second Progress Report of the Special Rapporteur on the question of terrorism and human rights, E/CN.4/Sub.2/2002/35, paras 21–34.
(xcviii) UNESCO Res. 39 (2001), Call for international cooperation to prevent and eradicate acts of terrorism, Records of the General Conference, 31st Session, 15 October to 3 November 2001, p. 79, http://www.unesco.org/confgen/press_rel/201001_terrorism.html.
(xcix) ibid., paras 4 & 5.
(c) ibid., para. 8.
(ci) Report of the Secretary-General, A/58/266, 2003.
(cii) Study of the United Nations High Commissioner for Human Rights (UNHCHR), para. 36.
(ciii) HRC, General Comment 29, States of Emergency (Art. 4), CCPR/C/21/Rev.1/Add.11, 31 August 2001, paras 2–4.
(civ) The Committee Against Torture (CAT) monitors the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984).
(cv) The Committee on the Elimination of Racial Discrimination (CERD) monitors the Convention on the Elimination of All Forms of Racial Discrimination (1965).
(cvi) CAT, Statement of the Committee Against Torture, CAT/C/XXVII/Misc.7, 22 November 2001; CERD, Statement on Racial Discrimination and Measures to Combat Terrorism, A/57/18 (Ch. XI)(C), 1 November 2002.
(cvii) ibid., para. 5.
(cviii) HRC General Comment 31, ‘Nature of the General Legal Obligation Imposed on States Parties to the Covenant’, CCPR/C/21/Rev.1/Add.13.
(cix) The Committee on the Rights of the Child monitors the Convention on the Rights of the Child (1989).
(cx) UNHCHR Study, para. 38.
(cxi) Joint Statement, E/CN.4/2002/75, Annex IV.
(cxii) Joint Statement, E/CN.4/2004/4, Annex I. A number of special procedures have devoted entire reports to the issue, notably the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance (E/CN.4/2003/23 & E/CN.4/2004/19), the Special Rapporteur on the question of torture (A/57/173), and the Special Representative of the Secretary-General on the situation of human rights defenders (A/58/380).
(cxiii) Commission on Human Rights, Res. 2004/87. Professor Robert Goldman was appointed to this position.
(cxiv) Commission on Human Rights, Res. 2005/80, 21 April 2005, E/CN.4/2005/L.10/Add.17.
(cxv) Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (E/CN.4/2006/98, 28 December 2005).
(cxvi) ibid., para. 42.
(cxvii) ibid., paras 37–8.
(cxviii) ibid., paras 43–4.
(cxix) The resolution does make one express reference to human rights in the context of refugee determination processes.
(cxx) ‘Proposals for “Further Guidance” for the submission of reports pursuant to paragraph 6 of Security Council Resolution 1373 (2001)’, http://www.un.org/Docs/sc/committees/1373/ohchr2.htm.
(cxxi) As reported at http://www.un.org/sc/ctc/humanrights.shtml.
(cxxii) S/RES/1456(2003), para. 6.
(cxxiii) ibid., para. 10.
(cxxiv) Human Rights Watch, Hear No Evil, See No Evil: The UN Security Council’s Approach to Human Rights Violations in the Global Counter-terrorism Effort, Briefing Paper, 10 August 2004.
(cxxvi) Report of the UN High Commissioner for Human Rights, Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, E/CN.4/2006/94, 16 February 2006, para. 6.
(cxxvii) Philippe Sands, Lawless World: America and the Making and Breaking of Global Rules, Allen Lane: Penguin Australia, 2005, p. 153.
(cxxviii) UNESCO, op. cit., para. 6.
(cxxix) Report of the Secretary-General, Protecting Human Rights and Fundamental Freedoms While Countering Terrorism, A/60/374, 22 September 2005, para. 4.