This submission addresses a number of human rights concerns raised by the Bill. It does not, however, purport to be a comprehensive analysis of all the human rights implications of the proposed legislation. The Commission recommends that certain provisions of the Bill not be passed. In addition, the Commission makes a number of recommendations about ways the impact of the Bill on human rights could be ameliorated. Terrorism and Human Rights The Commission recognises the vital importance of ensuring that intelligence and law enforcement agencies have appropriate powers to protect Australia’s national security and to protect the community from terrorism. Indeed, such steps are consistent with Australia’s international obligations in international law, both under Security Council Resolutions, and to protect the right to life of persons under its jurisdiction. This right is itself a human right, enshrined in article 6 of the International Covenant on Civil and Political Rights (ICCPR). Human rights law provides significant scope for these agencies to have extensive powers, even where they impinge to some extent on individual rights and freedoms. Such limitations on rights must, however, be clearly expressed, unambiguous in their terms, and must be necessary and proportionate responses to potential harms. As the Office of the High Commissioner for Human Rights has observed, purpose of security measures is, fundamentally, to protect freedom and ‘the human rights.’ It is therefore essential that fundamental human rights are protected in the struggle against terrorism. Recommendations The Australian Human Rights Commission makes the following recommendations: Recommendation 1: The proposed amendments to the control order and preventative detention order regimes, including changes to the monitoring and surveillance powers in relation to those regimes (effected by schedules 2, 5, 8, 9, and 10 of the Bill), not be passed. Any amendments on these lines should be considered either after, or together with, a comprehensive review of the control order and preventative detention order regimes on the lines recommended by the Committee in its Advisory Report on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014. Recommendation 2: An issuing court should be required to appoint a court appointed advocate prior to issuing a control order in relation to a person aged under 18.
This submission addresses a number of human rights concerns raised by the Bill. It does not, however, purport to be a comprehensive analysis of all the human rights implications of the proposed legislation. The Commission recommends that certain provisions of the Bill not be passed. In addition, the Commission makes a number of recommendations about ways the impact of the Bill on human rights could be ameliorated. Terrorism and Human Rights The Commission recognises the vital importance of ensuring that intelligence and law enforcement agencies have appropriate powers to protect Australia’s national security and to protect the community from terrorism. Indeed, such steps are consistent with Australia’s international obligations in international law, both under Security Council Resolutions, and to protect the right to life of persons under its jurisdiction. This right is itself a human right, enshrined in article 6 of the International Covenant on Civil and Political Rights (ICCPR). Human rights law provides significant scope for these agencies to have extensive powers, even where they impinge to some extent on individual rights and freedoms. Such limitations on rights must, however, be clearly expressed, unambiguous in their terms, and must be necessary and proportionate responses to potential harms. As the Office of the High Commissioner for Human Rights has observed, ‘the purpose of security measures is, fundamentally, to protect freedom and human rights.’ It is therefore essential that fundamental human rights are protected in the struggle against terrorism. Recommendations The Australian Human Rights Commission makes the following recommendations: Recommendation 1: The proposed amendments to the control order and preventative detention order regimes, including changes to the monitoring and surveillance powers in relation to those regimes (effected by schedules 2, 5, 8, 9, and 10 of the Bill), not be passed. Any amendments on these lines should be considered either after, or together with, a comprehensive review of the control order and preventative detention order regimes on the lines recommended by the Committee in its Advisory Report on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014. Recommendation 2: An issuing court should be required to appoint a court appointed advocate prior to issuing a control order in relation to a person aged under 18.
09122015_counter-terrorism_legislation_amendment_bill.docx