1.1
This report provides the Parliamentary Joint Committee on Human Rights'
view on the compatibility with human rights of bills introduced into the
Parliament from 23 to 26 November 2015, legislative instruments received from
30 October to 12 November 2015, and legislation previously deferred by the
committee.
1.2
The report also includes the committee's consideration of responses
arising from previous reports.
1.3 The committee generally takes an exceptions based approach to its examination
of legislation. The committee therefore comments on legislation where it
considers the legislation raises human rights concerns, having regard to the
information provided by the legislation proponent in the explanatory memorandum
(EM) and statement of compatibility.
1.4
In such cases, the committee usually seeks further information from the
proponent of the legislation. In other cases, the committee may draw matters to
the attention of the relevant legislation proponent on an advice-only basis.
Such matters do not generally require a formal response from the legislation
proponent.
1.5
This chapter includes the committee's examination of new legislation,
and continuing matters in relation to which the committee has received a
response to matters raised in previous reports.
1.6
The committee has examined the following bills and concluded that they
do not raise human rights concerns. The following categorisation is indicative
of the committee's consideration of these bills.
1.7
The committee considers that the following bill does not require
additional comment as it either does not engage human rights or engages rights
(but does not promote or limit rights):
1.8
The committee considers that the following bill does not require
additional comment as it either promotes human rights or contains justifiable
limitations on human rights (and may contain both justifiable limitations on
rights and promotion of human rights):
1.9
The committee has examined the legislative instruments received in the
relevant period, as listed in the Journals of the Senate.[1]
Instruments raising human rights concerns are identified in this chapter.
1.10
The committee has concluded that the remaining instruments do not raise
human rights concerns, either because they do not engage human rights, they
contain only justifiable (or marginal) limitations on human rights or because
they promote human rights and do not require additional comment.
1.12
The committee continues to defer its consideration of the Migration
Amendment (Protection and Other Measures) Regulation 2015 [F2015L00542]
(deferred 23 June 2015).[2]
1.13
The committee also continues to defer the Charter of the United Nations
(UN Sanction Enforcement Law) Amendment Declaration 2015 (No. 1) [F2015L01422]
pending a response from the Minister for Foreign Affairs regarding a number of
related instruments.[3]
1.14
As previously noted, the committee continues to defer one bill and a
number of instruments in connection with the committee's current review of the Stronger
Futures in the Northern Territory Act 2012 and related legislation.[4]
1.15
The committee seeks a response or further information from the relevant minister
or legislation proponent with respect to the following bills and instruments.
1.16
The Counter-Terrorism Legislation Amendment Bill (No. 1) 2015 (the bill)
seeks to make amendments to a number of Acts: the Criminal Code Act 1995 (the
Criminal Code), the Crimes Act 1914 (the Crimes Act), the Surveillance
Devices Act 2004 (the SD Act), the Telecommunications (Interception and
Access) Act 1979 (TIA Act), the Australian Security Intelligence
Organisation Act 1979 (the ASIO Act), the Classification (Publication,
Films and Computer Games) Act 1995, the National Security Information
(Criminal and Civil Proceedings) Act 2004 (the NSI Act), the Taxation
Administration Act 1953, the Administrative Appeals Tribunal Act 1975
and the Public Interest Disclosure Act 2013.
1.17
Key amendments in the bill are set out below.
1.18
Schedule 1 seeks to amend the Criminal Code to ensure that the offence
provision of receiving funds from a terrorist organisation does not apply to
the provision of legal advice or legal representation in certain circumstances.
1.19
Schedule 2 seeks to amend the Criminal Code to enable control orders to
be imposed on persons aged 14 and 15 years of age.
1.20
Schedule 3 seeks to amend the Criminal Code to impose an obligation on a
person required to wear a tracking device, to maintain that device in good
operational order.
1.21
Schedules 4 and 6 seek to amend the Criminal Code to remove
the authority of the Family Court of Australia to issue control orders and
preventative detention orders (PDOs).
1.22
Schedule 5 seeks to amend the Criminal Code to define the meaning of
'imminent' for the purposes of obtaining a PDO.
1.23
Schedule 7 seeks to amend the Criminal Code to specify the application
of Schedules 2 and 3 in relation to current and ongoing investigations.
1.24
Schedule 8 seeks to amend the Crimes Act to establish regimes to monitor
the compliance of individuals subject to a control order through search
warrants, surveillance device warrants and telecommunications interception
warrants.
1.25
Schedule 9 seeks to amend the TIA Act to grant agencies the power to
obtain telecommunications interception warrants to monitor a person subject to
a control order, to monitor their compliance with that control order, and to
permit the chief officer of a specified agency to defer public reporting on the
use of that warrant in certain circumstances.
1.26
Schedule 10 seeks to amend the SD Act to allow law enforcement officers
to apply to an issuing authority for a surveillance device warrant for the
purposes of monitoring compliance with a control order.
1.27
Schedule 11 seeks to amend the Criminal Code to create a new offence
prohibiting conduct advocating genocide.
1.28
Schedule 12 seeks to amend the ASIO Act to enable the Australian
Security Intelligence Organisation (ASIO) to furnish security assessments
directly to states and territories.
1.30
Schedule 14 seeks to amend the Crimes Act to clarify the threshold
requirements for the issue of a delayed notification search warrant.
1.31
Schedule 15 seeks to amend the NSI Act to broaden protections for
national security information in control order proceedings, and to allow an
issuing court to consider information in these proceedings which is not
disclosed to the subject of the control order or their legal representative.
1.32
Schedule 16 seeks to amend the NSI Act to enable a court to make an
order that is inconsistent with regulations made under the Act if the
Attorney-General has applied for the order, and the parties agree, and to
enable the regulations to continue to apply to the extent they provide for ways
of dealing with national security information in criminal and civil
proceedings.
1.34
Measures raising human rights concerns or issues are set out below.
Background
1.35
The committee has previously considered three bills in relation to
counter‑terrorism and national security, namely the National Security
Legislation Amendment Bill (No. 1) 2014,[5]
the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (the
Foreign Fighters Bill),[6]
and the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014.[7]
National security and human rights
1.36
As noted in its previous analysis of national security legislation, the
committee recognises the importance of ensuring that national security and law
enforcement agencies have the necessary powers to protect the security of all
Australians. Moreover, the committee recognises the specific importance of
protecting Australians from terrorism. The Australian government has the
responsibility to ensure that laws and operational frameworks support the
protection of life and security of the person. In addition, Australia has
specific international obligations to detect, arrest and punish terrorists.
1.37
In this respect, the committee notes that the threat of terrorism in
Australia has heightened in recent times, as the Attorney-General has
explained:
Since 12 September 2014, when the National Terrorism Public
Alert level was raised to High, 26 people have been charged as a result of 10
counter-terrorism operations around Australia. That's more than one third of
all terrorism related arrests since 2001.[8]
1.38
In addition, there have been terrorist attacks in Sydney, Melbourne and
Parramatta in recent times which suggest the heightened terrorism threat may
require additional legislative responses.[9]
For example, one of those attacks was by a 15 year old and the bill seeks to
lower the age at which control orders may be applied to 15 year olds.
1.39
Legislative responses to issues of national security are likely to
engage a range of human rights. For example, legislative schemes aimed at the
prevention of terrorist acts may seek to achieve this through measures that
limit a number of traditional freedoms and protections that are characteristic
of Australian society and its system of government.
1.40
Human rights principles and norms are not to be understood as inherently
opposed to national security objectives or outcomes. Rather, international
human rights law allows for the balancing of human rights considerations with
responses to national security concerns.
1.41
International human rights law allows for reasonable limits to be placed
on most rights and freedoms as long as the limitation is reasonable, necessary and
proportionate to achieve a legitimate objective.[10]
This is the analytical framework the committee applies when exercising its
statutory function of examining bills for compatibility with human rights. The
committee expects proponents of legislation, who bear the onus of justifying
proposed limitations on human rights, to apply this framework in the statement
of compatibility required for bills.
1.42
The bill contains 17 schedules of amendments. The analysis below relates
to six of those schedules and, in the interests of timely reporting, focuses on
the most serious human rights issues. Accordingly, the committee has concluded
that 11 of the schedules in the bill do not require further explanation or are
otherwise likely to be compatible with human rights.
1.43
In relation to the remaining six schedules, much of the analysis below
is targeted at ensuring that, while law enforcement agencies and intelligence
agencies have appropriate and effective powers, those powers are not broader
than is necessary and are subject to appropriate safeguards. The procedural guarantees
provided for by international human rights law recognises that human error and
mistakes are possible, and such safeguards seek to minimise the harm caused by
any such errors and provide redress where appropriate. Such safeguards are not
intended to thwart legitimate efforts to ensure the safety of Australians.
1.44
The following analysis contains repeated requests for more information
which are necessary because of pervasive shortcomings in the statement of
compatibility for the bill. International human rights law requires evidence
and reasoning to justify limitations on human rights, and broad references to
terrorism and the current national security environment may not provide a
sufficient basis to assess the human rights compatibility of proposed legislation.
What is required is a succinct explanation of where there is a purported
deficiency in the current legal framework and an explanation as to how the bill
seeks to address that deficiency. Without this, it is difficult for the
committee to assess whether a measure supports a legitimate objective and is
rationally connected to that objective. Notwithstanding this, the committee
notes that the Attorney-General's second reading speech on the bill explains:
The measures introduced in this Bill reflect lessons learned
from recent counter-terrorism investigations and operational activity.[11]
1.45
Statements of compatibility should provide a standalone analysis of the
compatibility of a bill and should be easy to read and clear.[12]
This is especially the case where significant limitations on rights are
provided for in a bill. In this regard, the statement of compatibility for the
bill has a number of deficiencies that are explained below.
Schedule 2—Extending control orders to
14 and 15 year olds
1.46
The bill proposes
to amend the control orders regime
under Division 104 of the Criminal Code to
allow for control orders to be imposed on children aged 14 or 15 years of
age. Currently, control orders may only be imposed on adults and children aged
16 or 17 years of age.
1.47
The committee has previously considered the control orders regime as
part of its consideration of the Counter-Terrorism Legislation Amendment
(Foreign Fighters) Bill 2014[13]
and the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014.[14]
The bill's expansion of the control orders regime to
children aged 14 and 15 years of age raises the threshold question of whether
the existing control orders regime is compatible with human rights.
1.48
The control orders regime is necessarily coercive
in nature. The former Independent National Security Legislation Monitor (INSLM)
noted:
They [control orders] are striking because of their provision
for restraints on personal liberty without there being any criminal conviction
or even charge.[15]
1.49
The control orders
regime grants the courts power to
impose a control
order on a person at the request
of the Australian Federal Police (AFP), with the Attorney‑General's consent.
The terms of a control
order may impose a number
of obligations, prohibitions and restrictions on the person
subject to the order.
These include:
-
requiring a person
to stay in a certain
place at certain
times;
-
preventing a person from going to certain
places;
-
preventing a person from talking to or associating with certain
people;
-
preventing a person from leaving Australia;
-
requiring a person
to wear a tracking
device;
-
prohibiting access or use of specified
types of telecommunications, including the internet and telephones;
-
preventing a person from possessing or using specified articles
or substances; and
-
preventing a person from
carrying out specified activities, including in relation to their work or
occupation.
1.50
The steps for the issue
of a control order are:
-
a senior AFP member must obtain the Attorney-General's
written consent to seek a control order on prescribed grounds;
-
once consent is granted, the AFP member
must seek an interim
control order from an
issuing court, which must be
satisfied on the balance of
probabilities:
-
that making the order would substantially assist in preventing a terrorist
act; or
-
that the person has provided training to, received training from or
participated in training with a listed terrorist organisation; or
-
that the person has engaged in a hostile activity in a foreign country;
or
-
that the person has been convicted in Australia of an offence relating
to terrorism, a terrorist organisation or a terrorist act; or
-
that the person has been convicted in a foreign country for an
equivalent offence; or
-
that making the order would substantially assist in preventing the
provision of support for or the facilitation of a terrorist act; or
-
that the person has provided support for or otherwise facilitated the
engagement in a hostile activity in a foreign country; and
-
the court must also be satisfied on the balance of probabilities
that each of the obligations, prohibitions and restrictions to be imposed on
the person by the order is reasonably necessary, and reasonably appropriate and
adapted, for the purpose of:
-
protecting the public from a terrorist act; or
-
preventing the provision of support for or the facilitation of a
terrorist act; or
- preventing the provision of support for or the facilitation of the
engagement in a hostile activity in a foreign country; and
-
the AFP must subsequently seek the court's confirmation of the order, with a confirmed order able to last up to 12 months.
1.51
The control orders regime
clearly imposes a range of limitations on personal liberty and engages and limits multiple human rights.
1.52
Schedule 2 also provides for
an issuing court to appoint a lawyer as an advocate to act on behalf of a child
between the ages of 14 and 17 who is subject to an interim control order. This
measure engages and limits article 12 of the Convention on the Rights of the
Child (CRC). This issue deals with a discrete part of the control orders regime
and will be dealt with separately below.
Multiple rights
1.53
The control orders regime, and the amendments to that regime proposed by
the bill, engage and limit a number of human rights, including:
-
right to equality and non-discrimination;[16]
-
right to liberty;[17]
-
right to freedom of movement;[18]
-
right to a fair trial and the presumption of innocence;[19]
-
right to privacy;[20]
-
right to freedom of expression;[21]
-
right to freedom of association;[22]
-
right to the protection of the family;[23]
-
prohibition on torture and cruel, inhuman or degrading treatment;[24]
-
right to work;[25]
and
-
right to social security and an adequate standard of living.[26]
1.54
The proposed expansion of the control orders regime to children aged 14
and 15 years of age also engages the obligation to consider the best interests
of the child and a range of rights set out in the CRC which are consistent with
the rights outlined above.[27]
Compatibility of the measure with multiple rights
Threshold assessment of
control orders—legitimate objective
1.55
The statement of compatibility focuses primarily on the proposed change
to the age threshold for control orders rather than dealing more broadly with
the human rights implications of the control orders regime. Any measure that
limits human rights must be demonstrated to seek to achieve a legitimate
objective and be rationally connected to, and a proportionate way to achieve,
the objective in order to be justifiable in international human rights law.
1.56
The committee has previously concluded that the control orders regime pursues
the legitimate objective
of providing law enforcement agencies with the necessary
tools to respond
proactively to the evolving nature
of the threat presented
by those wishing to undertake terrorist acts in Australia.[28]
Threshold assessment of control orders—rational
connection
1.57
In addition to seeking to achieve a legitimate objective, a measure that
limits rights must be rationally connected to that objective (that is, it must
be likely to achieve its objective). There may be doubt as to whether control
orders are rationally connected to that objective as they may not necessarily
be the most effective tool to prevent terrorist acts. For example, the former
INSLM has stated:
The effectiveness, appropriateness and necessity of COs
[control orders] are all reduced or made less likely if it is feasible that
comparatively early in the course of offending a person may be charged with a
terrorism offence. Australia's inchoate or precursor terrorism offences under
the [Criminal] Code are striking in that they criminalise conduct at a much
earlier point than has traditionally been the case.[29]
1.58
The particular character of terrorism laws has also been recognised in
Australian domestic courts which have noted, for example:
Preparatory acts are not often made into criminal offences.
The particular nature of terrorism has resulted in a special, and in many ways
unique, legislative regime. It was, in my opinion, the clear intention of
Parliament to create offences where an offender has not decided precisely what
he or she intends to do. A policy judgment has been made that the prevention of
terrorism requires criminal responsibility to arise at an earlier stage than is
usually the case for other kinds of criminal conduct, eg well before an agreement
has been reached for a conspiracy charge.[30]
1.59
In terms of the evidence required for a control order, the former INSLM
has also noted:
...the kind and cogency of evidence in support of an
application for a CO [control order] converges very closely to the kind and
cogency of evidence to justify the laying of charges so as to commence a
prosecution...Nothing was obtained in private hearings [primarily with law
enforcement and intelligence agencies investigating these issues] suggesting to
the contrary.[31]
1.60
Notwithstanding this, the committee notes the government's advice as set
out above at paragraph [1.37] that the terrorism threat has subsequently
evolved and that control orders have now been used four times since the
committee last considered counter-terrorism legislation in late 2014. In
addition, the current INSLM is currently conducting an inquiry into control
orders and was originally due to report in February 2016.
1.61
Accordingly, while there may be some doubt that control orders are an
effective tool to respond to terrorism, above and beyond Australia's
traditional criminal justice response of arrest, charge, prosecution and
determination of guilt beyond a reasonable doubt, there have been significant
recent developments in the counter-terrorism space in recent times.
Threshold assessment of control orders—proportionality
1.62
In terms of proportionality there may be questions as to whether control
orders are the least rights restrictive response to terrorist threats, and
whether control orders contain sufficient safeguards to appropriately protect
Australia's human rights obligations.
1.63
For example, amendments introduced by the Counter-Terrorism Legislation
Amendment Bill (No. 1) 2014 allow control orders to be sought in circumstances
where there is not necessarily an imminent threat to personal safety.[32]
The protection from imminent threats has been a critical rationale relied on
for the introduction and use of control orders rather than ordinary criminal
processes. In the absence of an imminent threat it is difficult to justify as
proportionate the imposition of a significant limitation on personal liberty
without criminal charge.
1.64
In addition, the issuing criteria for a control order set out in section
104.4 of the Criminal Code requires that each proposed condition of a control
order must be reasonably necessary, and reasonably appropriate and adapted, to
the purpose of protecting the public from the threat of a terrorist act.
However, there is no requirement that the conditions be the least rights
restrictive measures to protect the public.
1.65
In 2013, a review of counter-terrorism legislation prepared for the
Council of Australian Governments (COAG) recommended:
...section 104.5 [of the criminal code] should be amended to
ensure that, whenever a control order is imposed, any obligations, prohibitions
and restrictions to be imposed constitute the least interference with the
person's liberty, privacy or freedom of movement that is necessary in all the
circumstances.[33]
1.66
This was rejected by COAG and separately by the Australian government.[34]
This appears to be based on a view that a least rights restrictive approach may
be 'less than what is reasonably necessary for public protection'.[35]
However, a least rights restrictive approach would not mean that public
protection would become a secondary consideration in the issuance of a control
order. It would simply require a decision-maker to take into account any
possible less invasive means of achieving public protection. In the absence of
such requirements it is difficult to characterise the control orders regime as
the least rights restrictive approach for protecting national security, and to
assess the proposed measures as a proportionate way to achieve their stated
objective.
Applying control orders to 14
and 15 year olds—legitimate objective
1.67
Turning to the specific amendments in Schedule 2, which would allow the
AFP to seek a control order for children aged 14 or 15 years of age, the
statement of compatibility does not explicitly set out the legitimate objective
of these measures. However, the explanatory memorandum explains:
These amendments respond to incidents in Australia and
overseas that demonstrate children as young as 14 years of age are organising
and participating in terrorism related conduct. With school-age students being
radicalised and engaging in radicalising others and capable of participating in
activity which poses a threat to national security, the age limit of 16 years
is no longer sufficient for control orders to prevent terrorist activity.[36]
1.68
However, to be capable of justifying a proposed limitation of human
rights, a legislation proponent must provide a reasoned and evidence-based
explanation as to how the measures address a pressing or substantial concern.
Neither the statement of compatibility nor the explanatory memorandum explain in
detail how the current criminal law does not adequately provide for the
protection against terrorist acts by 14 and 15 year olds.
Applying control orders to 14
and 15 year olds—rational connection
1.69
In addition, as outlined above, it is not clear from the statement of
compatibility how the measures are rationally connected to a legitimate
objective.
Applying control orders to 14
and 15 year olds—proportionality and safeguards
1.70
In terms of proportionality, the bill makes a number of significant
legislative changes to control orders applying to children aged 14 to 17 years
of age, including:
-
the AFP must give information as to the person's age to the
Attorney‑General in the application for consent to a control order;
-
in determining each of the obligations, prohibitions and
restrictions under the control order, the court must consider whether they are
reasonably necessary and reasonably appropriate and adapted and also whether
they are in the best interest of the child. In determining a child's best
interests, the court must consider: the age, maturity, sex and background of
the person, their physical and mental health, maintenance of family
relationships, the right to education, their right to practise their religion
and any other matter the court considers relevant;
-
that control orders for 14 to 17 year olds are limited to a three
month duration instead of the 12 months which applies to adults; and
-
after imposing an interim control order on a child, a court must
appoint an independent advocate in relation to the interim control order, any
confirmation, variation or revocation of that control order and any other
orders.
1.71
The committee considers that many of these provisions provide safeguards
for the purposes of international human rights law (and relative to the control
orders regime that applies to adults).
1.72
However, for the reasons set out below, it has not been fully explained
in the statement of compatibility whether these safeguards will fully ensure
that the control orders regime will impose only proportionate limitations on
the multiple human rights identified above.
Applying control orders to 14
and 15 year olds—proportionality and best interests of the child considerations
1.73
In relation to the requirement for a court to consider the best
interests of the child when assessing each of the proposed obligations,
prohibitions and restrictions under a control order, the statement of
compatibility explains:
...the issuing court will be required to consider the child's
best interests as a primary consideration. New subsection 104.4(2A) treats the
child's best interests as "a primary" consideration.[37]
1.74
However, the court is not required to consider the child's best
interests when initially considering whether, on the balance of probabilities,
a control order is necessary in accordance with the legislative criteria. In
the case of an imminent threat to life it would appear entirely appropriate
that the legislative criteria focus primarily on national security issues.
However, as explained above at paragraph [1.63], control orders may now be
obtained in circumstances removed from imminent threats and in circumstances
where it may be more appropriate to lay charges for a precursor offence.
Accordingly, it has not been fully explained in the statement of compatibility
why the best interests of the child test does not apply to this initial step of
the control order application process.
1.75
In addition, while the court must consider the best interests of the
child in determining each of the proposed obligations, prohibitions and
restrictions under the control order, the word 'primary' (as in a 'primary
consideration') is not included in the proposed provision or referred to in the
explanatory memorandum to the bill. A court applying these provisions would
presumably interpret the intention of the parliament to be that the best
interests of the child should not be the primary consideration. However, the
CRC requires that the best interests of the child be 'a primary consideration'
and not just 'a consideration'. Accordingly, it is unclear how this provision
is consistent with Australia's obligations under the CRC.
Applying control orders
to 14 and 15 year olds—proportionality and the right to liberty
1.76
The statement of compatibility states:
A control order does not authorise detention. A child will
not be separated from family and will be able to attend school.[38]
1.77
However, there is nothing in the legislation that would prevent a child
being separated from their family or being denied access to school. All the
bill requires is that a court must consider the benefit of a child having a
meaningful relation with their family and their right to receive an education
when determining the conditions of a control order. It does not prevent an
order being made that separates a child from their family or requires them not
to attend a particular school.
1.78
In addition, a control order may include a requirement that a person be
confined to a particular place and subject to a curfew of up to 12 hours in a
24 hour period. This would appear to meet the definition of detention (or
deprivation of liberty) under international human rights law, which is much
broader than being placed in prison. The United Nations Human Rights Committee
has explained:
Examples of deprivation of liberty include police custody,
arraigo, remand detention, imprisonment after conviction, house arrest,
administrative detention, involuntary hospitalization, institutional custody of
children and confinement to a restricted area of an airport as well as being
involuntarily transported.[39]
1.79
In terms of the proportionality of such detention, the UK courts have
found that curfews of 18 hours per day amount to disproportionate deprivations
of liberty, and that curfews of 12 to 14 hours may not be disproportionate.[40]
1.80
The European Court of Human Rights and the UK House of Lords have held
that control order conditions must be considered cumulatively, such that a nine
hour curfew combined with other stringent measures may effectively amount to a
deprivation of liberty.[41]
1.81
In assessing what constitutes a deprivation of liberty, the issue is the
length of the period for which the individual is confined to their residence.
Other restrictions imposed under a control order, which contribute to the
controlee's social isolation, may also be taken into account along with the
period of the curfew.[42]
Accordingly, the statement of compatibility has not fully explained whether the
detention that may be imposed as part of a control order under this bill is
proportionate.
Applying control orders to 14
and 15 year olds—proportionality and limited use of control orders
1.82
The statement of compatibility also notes that control orders are not
intended to be used often:
A control order would only be issued against a child,
especially one as young as 14, in the rare circumstance that it was required to
prevent a child from being involved in a terrorist act. This includes
protecting a child who may be acting under the direction or influence of an
extremist group or individual. In these circumstances, the wellbeing and best
interests of a child may be adversely affected if a control order is not issued
in relation to that child. For example, the issuing of a control order in relation
to a child may prevent the child's contacting the group or individual who may
be encouraging the child to engage in terrorist-related conduct.[43]
1.83
However, in this example, it is unclear why it is not possible to target
the individuals that are encouraging the child to be involved in a terrorist
act rather than the child. If it is because those individuals are outside of
Australia's jurisdiction, it would be possible to limit the imposition of a
control order on a child to circumstances where it was not possible to control
the individuals seeking to influence the child. It would be useful if the
statement of compatibility explained whether these provisions impose a proportionate
limitation on the rights of children.
1.84
The statement of compatibility also states:
Control orders are used infrequently, with only six ever
issued as at November 2015 (with none having been issued for people aged under
18 years of age). This reflects the policy intent that these orders do not act
as a substitute for criminal proceedings. Control orders are a protective and
preventative mechanism subject to numerous legislative safeguards that preserve
the fundamental human rights of a person subject to a control order. The nature
of the restrictions imposed by control orders will always be subject to the
overarching legislative requirements that include consideration by the issuing
court that any limitation is "reasonably necessary" and "reasonably
appropriate and adapted" to protecting the public from a terrorist act.
While there is an expectation that the number of control orders made will
increase in coming years, the small number of control orders made to date and
the small number relative to investigations and prosecutions reflects the
policy intent that they are extraordinary measures which are to be used
sparingly – and this is especially so with children.[44]
1.85
The policy intent that the limitation on human rights be imposed rarely
is a relevant consideration in assessing proportionality. However, policy
intent, in and of itself, is an insufficient safeguard for the purposes of
international human rights law. As set out above at paragraph [1.63], a control
order may be granted in circumstances that are much broader than seeking to
stop a terrorist act. In this respect, to characterise the regime as providing
for 'extraordinary measures' does not reflect the breadth of circumstances in
which a control order may be granted, including that such an order would
substantially assist in the prevention of, the support for, or the facilitation
of, a terrorist act. Such support or facilitation does not need to be direct or
critical to the carrying out of the terrorist act, and the terrorist act does
not need to be imminent.
1.86
In addition, there is no requirement that the court consider whether
there are other criminal justice alternatives that may achieve the protection
of the public but impose less restrictions on a person subject to the control
order.
1.87
The issues outlined above raise questions as to the proportionality of
Schedule 2, which could have been explained more fully in the statement of
compatibility.
1.88
The committee has assessed the amendments to lower the age at which a
person may be subject to a control order to 14 years of age against multiple
human rights in the International Covenant on Civil and Political Rights, the
International Covenant on Economic, Social and Cultural Rights, the Convention
on the Rights of the Child and the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment.
1.89
As set out above, the amendments engage and limit multiple human
rights. The committee therefore seeks the advice of the Attorney-General as to:
-
whether there is reasoning or evidence that establishes that
the stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective;
-
whether the measures are rationally connected to that
objective; and
-
whether the limitation is a reasonable and proportionate
measure for the achievement of that objective.
Schedule 2—Court-appointed advocate for children
1.90
Item 46 of Schedule 1 to the bill would insert a new section 104.28AA in
the Criminal Code to provide for an issuing court to appoint a lawyer as an
advocate to act on behalf of a child between the ages of 14 and 17 who has been
made subject to an interim control order.
1.91
The court-appointed advocate would not be acting as the child's legal
representative and, as such, is not obliged to act on the instructions or
wishes of the child.
1.92
The committee considers that the introduction of court-appointed
advocates for children engages and limits the right of the child to be heard in
judicial and administrative proceedings.
Right of the child to be heard
in judicial and administrative proceedings
1.93
Article 12 of the CRC provides that state parties shall assure to a
child capable of forming his or her own views the right to express those views
freely in all matters affecting the child. The views of the child must be given
due weight in accordance with the age and maturity of the child.
1.94
In particular, this right requires that the child is provided the opportunity
to be heard in any judicial and administrative proceedings affecting them,
either directly or through a representative or an appropriate body, in a manner
consistent with the procedural rules of national law.
Compatibility of the measure with
the right of the child to be heard in judicial and administrative proceedings
1.95
The bill provides that the court-appointed advocate of a person must:
(b) form an independent view, based on the evidence available
to the advocate, of what is in the best interests of the person; and
(c) act in what the advocate believes to be the best
interests of the person; [and]
(e) ensure that any views expressed by the person in relation
to the control order matters are fully put before an issuing court...[45]
1.96
However, the court-appointed advocate is not required to take into
account the wishes of the child or act on their instructions during any court
proceedings, and is able to act independently and make recommendations as to a
specific course of action which may be explicitly in opposition to the wishes
of the child. As the explanatory memorandum says:
...the advocate is an independent party who is responsible for
representing the young person's best interests rather than the expressed wishes
of the young person.[46]
1.97
Further, the court-appointed advocate is authorised to disclose to the
court any information provided to the advocate by the child, if the advocate
believes that the disclosure is in the best interests of the child.[47]
This disclosure is authorised even in situations where it may be against the
wishes of the child.[48]
1.98
The explanatory memorandum stipulates that the bill allows that such
information does not necessarily have to be disclosed in order to 'facilitate a
relationship of trust and open communication between the young person and the
advocate'.[49]
However, the bill enables an advocate to disclose this should they so choose.
1.99
The statement of compatibility for the bill notes that the proposed new
section 104.28AA is modelled on sections 68L and 68LA of the Family Law Act
1975, which provide for the appointment of an independent children's
lawyer. The statement explains that the significant difference between the
provisions in that Act and those in the current bill is that the
court-appointed advocate is not acting as the child's legal representative but
rather as an advocate for the child's best interests.[50]
1.100
However, as set out above at paragraphs [1.53] to [1.54], the imposition
of control orders imposes severe restrictions on the human rights of those
subject to it. As such, the use of advocates in such proceedings is entirely
different from the family law context where issues relating to children are
primarily related to a child's residential or custody arrangements with his or
her parents or guardians.
1.101
Further, the recommendations of the advocate are not required to take
into account a consideration of the age of the child, or an individual
assessment of their maturity. The primary obligation under the CRC is to
support decision making by minors consistent with their maturity and capacity.
The children affected by these amendments would be between the ages of 14 and
17, and likely to have strong or well-formed opinions regarding how their
situation is handled before the courts.
1.102
The statement of compatibility states that a child may also engage their
own independent legal representative.[51]
However, the ability of the court-appointed advocate to make recommendations
against the wishes of the child nevertheless engages the right as set out above
at paragraphs [1.93] to [1.94].
1.103
The statement of compatibility does not address this right and,
accordingly, it would be useful for the Attorney-General to provide further
information in relation to the right of the child to be heard in judicial and
administrative proceedings.
1.104
The committee's usual expectation where a measure may limit a human
right is that the accompanying statement of compatibility provide a reasoned
and evidence-based explanation of how the measure supports a legitimate
objective for the purposes of international human rights law.
1.105
The committee has assessed amendments allowing for the
court-appointed advocate for children against article 12 of the Convention on
the Rights of the Child (right of the child to be heard in judicial and
administrative proceedings).
1.106
As set out above, the amendments engage and limit the right of the
child to be heard in judicial and administrative proceedings. The committee
therefore seeks the advice of the Attorney-General as to:
-
whether there is reasoning or evidence that establishes that
the stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective;
-
whether the measures are rationally connected to that
objective; and
-
whether the limitation is a reasonable and proportionate
measure for the achievement of that objective.
Schedule 5—'Imminent' test and preventative detention orders
1.107
Currently, a preventative detention order (PDO) can be applied for if it
is suspected, on reasonable grounds, that a person will engage in a terrorist
act, possesses something in connection with preparing for or engaging in a
terrorist act, or has done an act in preparation for planning a terrorist act.[52]
The terrorist act must be one that is imminent and expected to occur, in any
event, at some time in the next 14 days.[53]
1.108
Schedule 5 of the bill seeks to change the current test of 'imminent'
for the grant of (PDOs), by providing a new definition of 'imminent terrorist act'
as one that it is suspected, on reasonable grounds, is capable of being carried
out, and could occur, within the next 14 days.
1.109
As PDOs allow for the detention of a person for up to 48 hours, and the
amendments would broaden the basis on which a PDO can be made, the bill engages
and limits the right to liberty.
Right to liberty
1.110
Article 9 of the ICCPR protects the right to liberty—the procedural
guarantee not to be arbitrarily and unlawfully deprived of liberty. The
prohibition against arbitrary detention requires that the state should not
deprive a person of their liberty except in accordance with law. The notion of
'arbitrariness' includes elements of inappropriateness, injustice and lack of
predictability.
1.111
Accordingly, any detention must not only be lawful, it must also be
reasonable, necessary and proportionate in all the circumstances. Detention
that may initially be necessary and reasonable may become arbitrary over time
if the circumstances no longer require the detention. In this respect, regular
review must be available to scrutinise whether the continued detention is
lawful and non-arbitrary.
Compatibility of the measure with
the right to liberty
1.112
The statement of compatibility states that the change to the imminent
test engages but does 'not impact upon the right' to liberty.
1.113
However, the proposed amendments would lower the threshold on which a
PDO can be sought, so that instead of an event being 'expected to occur' within
the next 14 days it need only be 'capable of being carried out' and 'could occur'
within the next 14 days. In this regard, the measure limits the right to
liberty, and accordingly it is necessary to understand whether the measure
pursues a legitimate objective, is rationally connected to that objective and
is a proportionate way to achieve that objective.
1.114
First, the statement of compatibility states that the legitimate
objective of the PDO regime as a whole is to prevent an imminent terrorist act
occurring and preserve evidence of, or relating to, a recent terrorist act.[54]
1.115
However, the statement of compatibility does not provide an explanation
of the legitimate objective for lowering the threshold as to when an act is
considered to be 'imminent'. While the explanatory memorandum states that the
current test can be interpreted as 'imposing impractical constraints on law
enforcement agencies' in certain circumstances,[55]
it does not provide evidence or explanation as to the nature of those
circumstances so that the committee can understand the practical reasons for
the legislative change. In addition, the objective for the measure is somewhat
unclear, because the explanatory memorandum states that a PDO may be necessary
when a terrorist act could occur within 'months', but the statement of
compatibility characterises PDOs as being 'clearly preventative [in] nature'
and employed only in 'emergency circumstances where traditional law enforcement
powers are unavailable'.[56]
1.116
In this respect, it would be useful for the statement of compatibility
to fully articulate the reasoning and evidence underpinning the legitimate
objective to be achieved by the proposed change to the imminent test.
1.117
Second, noting that the objective of the PDO regime generally is to
prevent an imminent terrorist act from occurring, it has not been fully
explained how the amendments lowering the threshold of what is considered to be
imminent is rationally connected to that objective.
1.118
In particular, there has been some debate as to the effectiveness of the
PDO regime. In 2013 the Council of Australian
Governments Review of Counter-Terrorism Legislation (the COAG review)
extensively reviewed the PDO regime. It concluded that the PDO scheme 'is, as
presently structured, neither effective nor necessary' and recommended that the
PDO scheme be repealed.[57]
1.119
The finding of the COAG review expanded on the concerns raised in 2012
by the former INSLM, who questioned the efficacy and proportionality of PDOs
taking into account their particular character and the extent of their use. The
INSLM noted:
The combination of non-criminal detention, a lack of
contribution to CT [(counter-terrorism)] investigation and the complete lack of
any occasion so far considered appropriate for their use is enough to undermine
any claim that PDOs constitute a proportionate interference with liberty.[58]
1.120
The INSLM noted that the case for extraordinary powers for policing of
terrorism related offences, above the traditional powers and approaches to the
investigation and prosecution of criminal behaviour, had not been established:
There has been no material or argument demonstrating that the
traditional criminal justice response to the prevention and prosecution of
serious crime through arrest, charge and remand is ill-suited or ill-equipped
to deal with terrorism. Nor has this review shown that the traditional methods
used by police to collect and preserve evidence, eg search warrants, do not
suffice for the investigation and prosecution of terrorist suspects. There is,
by now, enough experience in Australia of police operations in the detection
and investigation, and support for prosecution, of terrorist offences. There is
therefore substantial weight to be given to the lack of a demonstrated
functional purpose for PDOs as a matter of practical experience.[59]
1.121
Notwithstanding this evidence, the committee notes the government's
advice, set out above at paragraph [1.37], that the terrorism threat has
subsequently evolved; and, as such, this evidence may be outdated in the
current security environment. Accordingly, it would be useful for the
Attorney-General to provide more information as to how the measure is
rationally connected to the objective of preventing imminent terrorist acts.
1.122
Third, to assess whether lowering the imminent threshold is compatible
with the right to liberty it is necessary to assess whether the current PDO
regime, together with the proposed amendments, provides sufficient safeguards
so as to be proportionate to the objective sought to be achieved.
1.123
In this respect, the statement of compatibility states that the right to
liberty is safeguarded by the existing provisions in the PDO regime, and
because the basis on which PDOs can be granted 'highlights the clearly
preventative nature of the PDO power'.[60]
In particular, the statement of compatibility points to certain requirements of
subsection 105.4(4)—namely, that there is a reasonable suspicion that a person
will engage in a national terrorist act; and that the AFP member and issuing
authority must be satisfied of three key matters:
-
the terrorist act is imminent;
-
making the order would substantially assist in preventing an
attack; and
-
detaining the person is reasonably necessary to achieve the
preventative purpose.
1.124
However, the committee notes that the PDO regime necessarily involves
significant limitations on human rights. This is because it allows the
imposition of a PDO on an individual without the normal criminal law process of
arrest, charge, prosecution and determination of guilt beyond a reasonable
doubt. Effectively, PDOs permit a person's detention by the executive without
charge or arrest.[61]
1.125
It is clear that the current requirement that a terrorist act be
imminent and expected to occur, in any event, at some time in the next 14 days
is intended to be a safeguard on the use of PDOs because it restricts their
use, as the statement of compatibility says, to emergency circumstances where
traditional law enforcement powers are unavailable.[62]
1.126
However, the amendments make two changes to this safeguard. First, the
current test requires that the act be both 'imminent' (which is undefined) and
expected to occur, in any event, within 14 days. The proposed new definition
would, in effect, remove the requirement that the act be imminent according to
the common definition of the term (that is, almost certain to happen very soon
or likely to occur at any moment). For example, a person could be detained,
without arrest or charge, for up to two days where it is reasonably suspected
that they possess a thing that is connected with preparing for a terrorist act
that is capable of being carried out and could occur within the next 14 days.
1.127
Second, the changes would mean that a terrorist act would be imminent if
it was capable of being carried out and could occur in the next 14 days,
without there being a need to suspect that such an act is likely to occur
within the next 14 days—as the explanatory memorandum notes, this could mean
that the act could occur within months.
1.128
While these changes may be based on operational advice it is not clear
from the information provided in the statement of compatibility that these
amendments are proportionate to their objective.
1.129
The committee has assessed the amendments to lower the threshold of
when an attack is considered to be 'imminent' for the purposes of a
preventative detention order against article 9 of the International Covenant on
Civil and Political Rights (right to liberty).
1.130
As set out above, the amendments engage and limit the right to
liberty. The committee therefore seeks the advice of the Attorney-General as
to:
-
whether there is reasoning or evidence that establishes that
the stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective; and
-
whether the measures are rationally connected to that
objective;
-
whether the limitation is a reasonable and proportionate
measure for the achievement of that objective.
Schedules 8 to 10—Monitoring compliance with control orders
1.131
Schedule 8 seeks to establish a regime of monitoring warrants to permit
a police constable to enter, by consent or by monitoring warrant, premises
connected to a person subject to a control order. A person subject to a control
order may also, by consent or monitoring warrant, be subject to a search of
their person including a frisk search. A search must be for a prescribed
purpose including protecting the public from a terrorist act or determining
whether a control order is (or has been) complied with.
1.132
Schedule 9 seeks to amend the TIA Act to allow law enforcement agencies
to obtain warrants for the purposes of monitoring compliance with a control
order. It would allow telecommunications interception information to be used in
any proceedings associated with that control order. The power to use telecommunications
interception for monitoring purposes is a covert power.
1.133
Schedule 10 seeks to amend the SD Act to allow law enforcement agencies
to obtain warrants to monitor a person who is subject to a control order to
detect breaches of the order. The amendments would allow surveillance device
information to be used in any proceedings associated with that control order.
They would also extend the circumstances in which agencies may use less
intrusive surveillance device without a warrant, to include monitoring of a
control order, and allow protected information obtained under a control order
warrant to be used to determine whether the control order has been complied
with. The power to use surveillance devices for monitoring purposes will remain
a covert power.
1.134
The Crimes Act and other Commonwealth legislation confer a range of
investigative powers on law enforcement and intelligence agencies. The
committee considers that the significant change proposed by these measures is
the power to search premises, intercept telecommunications and install
surveillance devices for the purposes of monitoring compliance with a control
order in the absence of any evidence (or suspicion) that the order is not being
complied with and/or any specific intelligence around planned terrorist
activities.
1.135
These powers involve serious intrusions into a person's private life,
including the power for law enforcement agencies to search property, conduct
frisk searches, listen into telephone calls, monitor internet usage and install
covert devices that would listen into private conversations between
individuals.
1.136
The powers also involve significant intrusions into the privacy of
individuals unrelated to the person who is subject to a control order,
including people who use computers at the same education facilities as a person
subject to a control order.
1.137
Accordingly, these schedules engage and limit the right to privacy.
Right to privacy
1.138
Article 17 of the ICCPR prohibits arbitrary or unlawful interferences
with an individual's privacy, family, correspondence or home.
1.139
Privacy is linked to notions of personal autonomy and human dignity: it
includes the idea that individuals should have an area of autonomous
development; a 'private sphere' free from government intervention and excessive
unsolicited intervention by others. The right to privacy requires that the
state does not arbitrarily interfere with a person's private and home life.
1.140
However, this right may be subject to permissible limitations which are
provided by law and are not arbitrary. In order for limitations not to be
arbitrary, they must seek to achieve a legitimate objective and be reasonable,
necessary and proportionate to achieving that objective.
Compatibility of the measures with
the right to privacy
1.141
The statement of compatibility states that the measures limit the right
to privacy and concludes that any such limitation is justified:
[The legitimate objective of the measures]...is to assist law
enforcement officers prevent serious threats to community safety. The
potentially intrusive nature of the powers is balanced by their use solely in
respect of terrorism offences, which constitute the gravest threat to the safety
of Australians.[63]
1.142
Assisting law enforcement officers to prevent serious threats to
community safety is likely to be a legitimate objective for the purposes of
international human rights law and, as the monitoring powers may assist in law
enforcement efforts, the measures are rationally connected to that objective.
1.143
In relation to proportionality, the primary expansion in investigative
powers provided for by the measures is in relation to compliance with a control
order. Control orders necessarily include very broad and significant restraints
on an individual's liberty. A breach of any condition of a control order is a
criminal offence punishable by five years imprisonment.
1.144
As set out above at paragraph [1.49], the conditions of a control order
could include requiring a person to stay in a certain place at certain times,
preventing a person from going to certain places and preventing a person from
possessing or using a telephone or the internet. A breach of a control order
could be relatively minor—for example, breaching a curfew by 30 minutes or
talking innocently on a phone in breach of an order.
1.145
If these intrusive powers were used solely in respect of terrorism
offences and not in relation to potentially minor breaches of a control order,
it is likely that the measures in this bill would be compatible with international
human rights law. However, as the powers are much broader, more information
would assist the committee to assess whether these powers impose only a
proportionate limitation on the right to privacy.
1.146
A monitoring warrant may be obtained not just in relation to the place
that a person subject to a control order is ordinarily resident but also in
relation to premises to which the person has a 'prescribed connection'. This
includes the place where such a person goes to school or university, a place
where they work or undertake voluntary work and even a friend's place. Under
these measures it would therefore be possible, for example, to obtain a
monitoring warrant for a university library to determine whether a person
subject to a control order, who is a student at that university, has used the
library to access the internet in breach of their control order.
1.147
In relation to telephone intercepts, agencies will be able to apply for
telecommunications service warrants (A-party (control order subject) and
B-party (third party)) and named person warrants. An interception warrant may
also authorise access to stored communications and telecommunications data
associated with the service or device.
1.148
The statement of compatibility explains:
The amendments establish a number of safeguards to ensure
that any interference with privacy is for a legitimate objective and
implemented in a proportionate manner...[T]he judge or nominated AAT member must
have regard to the privacy of any person or persons would be likely to be
interfered with by intercepting under a warrant communication made to or from
the telecommunications service...The judge or AAT member must also have regard to
what extent methods...that do not involve intercepting communications have been
used by or are available to the agency seeking the warrant, [and] how much the
use of such methods would be likely to assist...[64]
1.149
A telecommunications warrant can be obtained where it would assist in
determining compliance with a control order, and there is no requirement that
there be a suspicion of a breach of the warrant or that there be any
investigation on foot. Importantly, the privacy of the control order subject
and third parties communicating with that person are required to be considered
before a telecommunications intercept warrant may be issued. In addition, the
issuing authority must have regard to alternatives for obtaining that evidence
without the interception. However, while the provisions require the
consideration of privacy, it is not a determinative factor. There is no
requirement that the warrants only be issued where the evidence cannot be
obtained by less intrusive means.
1.150
Moreover, warrants to intercept telecommunications can be obtained not
just in relation to the person subject to the control order but also in
relation to any person that they are likely to communicate with (B-Party
warrants). While there are strict rules around such interception, including the
exhaustion of certain practical alternatives, given the breadth of control
order conditions and that the purpose of such interception is simply to monitor
compliance, it would be useful if more information was provided to explain
whether the ability to issue B-Party warrants is appropriate in the
circumstances.
1.151
In relation to surveillance devices, such devices can currently be
obtained only when the issuing authority is satisfied that there are reasonable
grounds for suspecting that a relevant offence has been, is being, or is likely
to be, committed. Under the bill the only requirement for the use of such
devices is that it would substantially assist in determining the control order
has been, or is being, complied with. Any surveillance device that monitors
where a person subject to a control order goes and who they talk to is likely
to meet this test. There is no requirement that such devices only be placed in
properties connected with the control order subject. The bill would also allow
the use of certain devices without a warrant for the purposes of monitoring
compliance with a control order—this could include tracking the movement of
vehicles that the control order subject may travel in.
1.152
In relation to surveillance devices, the statement of compatibility
states:
Only people who are subject to a control order will have
their right to privacy limited by these amendments.[65]
1.153
However, a surveillance device may be authorised if it would substantially
assist in determining that the control order has been, or is being, complied
with. This would include listening into conversations between people in the
home, car, workplace, or university of a control order subject, and thus would
limit the right to privacy of those third parties. Accordingly, it appears that
the privacy implications of the use of surveillance devices could extend to
innocent third parties in addition to the control order subject.
1.154
The statement of compatibility also states:
Judicial oversight prior to the use of a privacy-intrusive
surveillance device requires law enforcement agencies to demonstrate the
necessity and proportionality of surveillance to an independent party. This is
an important safeguard.[66]
1.155
The bill requires the judge or Administrative Appeals Tribunal member to
have regard to the likely value of information sought to be obtained in
determining whether the control order is complied with and the possibility that
the person has or will contravene the control order. These are not strict
conditions that require the surveillance device to be used only when necessary
or as a last resort when less intrusive means are not available to determine
compliance with the control order.
1.156
In terms of transparency, the bill would also introduce new deferred
reporting arrangements which, in certain circumstances, will permit delayed public
reporting on the use of telecommunications intercepts and surveillance devices
in relation to a control order.
1.157
The statement of compatibility explains:
Due to the small number of control orders which are issued,
immediate reporting of any warrants or authorisations of surveillance devices
may enable an individual to determine whether they are the subject of
surveillance. If a person knows, or suspects that there is a control order
surveillance device warrant in place, they are more likely to be able to modify
their behaviour to defeat those lawful surveillance efforts. Also, if a person
knows or suspects that a surveillance device warrant is not in force, the
deterrence value of the control order is limited to the extent that the person
believes they can engage in proscribed activity without risk of detection.
Deferred reporting balances the public interest in timely and transparent
reporting with the need to preserve the effectiveness of control orders to
prevent individuals from committing terrorist acts.[67]
1.158
While this sets out why there are legitimate reasons for delayed
notifications, the reporting requirements provide transparency around the use
of very intrusive investigative tools. Transparency is an important safeguard
that is relevant to the assessment of the proportionality of the measures.
Accordingly, the reduction in transparency needs to be considered in assessing
whether these measures impose a proportionate limitation on the right to
privacy.
1.159
The committee has assessed the investigative powers in Schedules 8, 9
and 10 of the bill against article 17 of the International Covenant on Civil
and Political Rights (right to privacy).
1.160
As set out above, the amendments engage and limit the right to
privacy. The statement of compatibility explains how that limitation achieves a
legitimate objective and is rationally connected to that objective. However,
further information would assist in determining that the limitation is
proportionate. The committee therefore seeks the advice of the Attorney-General
as to whether the limitation is a reasonable and proportionate measure for the
achievement of that objective.
Schedules 9 and 10—Use of information obtained under warrant if interim
control declared void
1.161
Schedules 9 and 10 of the bill seek to include new provisions in the TIA
Act and the SD Act to allow for the use of information intercepted or accessed
under a warrant relating to an interim control order that is subsequently
declared to be void.[68]
This relates to the proposed new interception and surveillance warrants as
described at paragraphs [1.132] to [1.133] above.
1.162
The bill would ensure that, where a warrant was issued on the basis that
an interim control order was in force, and a court subsequently declares that
order to be void, any information obtained under the warrant (while in force)
can be used, recorded or given as evidence. The information can only be used if
the person using it reasonably believes that doing so is necessary to prevent
or reduce the risk of the commission of a terrorist act, serious harm to a
person or serious damage to property, and only for purposes relating to a PDO.[69]
1.163
The use of information obtained under a warrant relating to an interim
control order that is subsequently declared void engages and may limit the
right to a fair hearing and fair trial, in particular the right to equality of
arms.
Right to a fair trial and fair
hearing
1.164
The right to a fair trial and fair hearing is protected by article 14 of
the ICCPR. The right applies to both criminal and civil proceedings, and to
cases before both courts and tribunals. The right is concerned with procedural
fairness and encompasses notions of equality in proceedings, the right to a
public hearing and the requirement that hearings are conducted by an
independent and impartial body.
1.165
Specific guarantees of the right to a fair trial in the determination of
a criminal charge guaranteed by article 14(1) are set out in article 14(2) to
(7). These include the presumption of innocence (article 14(2)) and minimum
guarantees in criminal proceedings, such as the right not to incriminate
oneself (article 14(3)(g)) and a guarantee against retrospective criminal laws
(article 15(1)).
Compatibility of the measure with
the right to a fair trial and fair hearing
1.166
The right to a fair trial encompasses the right to equality of arms,
which is an essential component of the right to a fair trial. It requires that
a defendant must not be placed at a substantial disadvantage to the prosecution.
The UN Human Rights Committee's General Comment 32 notes that this means:
...the same procedural rights are to be provided to all the
parties unless distinctions are based on law and can be justified on objective
and reasonable grounds, not entailing actual disadvantage or unfairness to the
defendant.[70]
1.167
Allowing one party in an application for a PDO to rely on evidence or
information obtained under a warrant for an interim control order that is
subsequently declared to be void engages and may limit the rights of a person
subject to that order to equality of arms.
1.168
However, the statement of compatibility has not addressed this right
specifically. In discussing the amendments in general terms the statement of
compatibility explains that they reflect the public interest in protecting the
public from terrorist acts and serious harm and preventing serious damage to
property. It states:
Notwithstanding that the underlying order in relation to
which the warrant was made is no longer valid, there remains a strong justification
for allowing the information be used to prevent significant harm to the public.[71]
1.169
The committee notes that preventing serious harm to the public is a
legitimate objective for the purposes of international human rights law. It is
also clear that the measures are likely to be rationally connected to this
objective (that is, they are likely to be capable of achieving that objective).
However, further information would assist in clarifying that the measures are
proportionate to that objective.
1.170
The committee has assessed the amendments allowing the use of
information intercepted or accessed under a warrant relating to an interim
control order that is subsequently declared to be void against article 14 of
the International Covenant on Civil and Political Rights (right to a fair trial
and fair hearing).
1.171
As set out above, the amendments engage and may limit the right to a
fair trial and fair hearing. The committee therefore seeks the advice of the
Attorney‑General as to whether the limitation is a reasonable and
proportionate measure for the achievement of that objective.
Schedule 15—Non-disclosure of information to the subjects of control orders
and their legal representatives
1.172
Currently, the NSI Act allows a court to prevent the disclosure of
information in federal criminal and civil proceedings where it would be likely
to prejudice national security (except where this would seriously interfere
with the administration of justice). A range of protections for sensitive
information is available, including allowing such information to be redacted or
summarised, and preventing a witness from being required to give evidence.
1.173
Schedule 15 of the bill would amend the NSI Act to allow a court to make
the new types of orders restricting or preventing the disclosure of information
in control order proceedings such that:
-
the subject of the control order and their legal representative
may be provided with a redacted or summarised form of national security
information (although the court may consider all of the information contained
in the original source document);[72]
-
the subject of the control order and their legal representative
may not be provided with any information contained in the original source
document (although the court may consider all of that information);[73]
or
-
the subject of the control order and their legal representative
may not be provided with evidence from a witness in the proceedings (although
the court may consider all of the information provided by the witness).[74]
1.174
The court may make such orders where it is satisfied that the subject of
the control order has been given sufficient notice of the allegations on which
the control order request was based, even if they have not been given notice of
the information supporting those allegations.[75]
1.175
In addition, currently under the NSI Act a court can hold a closed
hearing to decide whether information potentially prejudicial to national
security may be disclosed (and, if so, in what form); and whether to allow a
witness to be called.[76]
The court has the discretion to exclude non-security cleared persons from the
hearing if their presence would be likely to prejudice national security.
1.176
The bill would further provide that a court may order, on the
application of the Attorney-General, that one or more specified parties to the
control order proceeding and their legal representative cannot be present
during closed hearing proceedings. This would apply even where the legal
representative has security clearance;[77]
and prevent any record of the closed hearing being made available to the legal
representative.[78]
1.177
Excluding the subject of the control order and their legal
representative from accessing information and evidence that supports the making
of a control order, and from hearings to decide whether to restrict such
information, engages and limits the right to a fair hearing.
Right to a fair trial and fair
hearing
1.178
The right to a fair trial and fair hearing is described above at
paragraphs [1.164] to [1.165].
Compatibility of the measure with
the right to a fair trial and fair hearing
1.179
The statement of compatibility acknowledges that the measures in
Schedule 15 limit the right to a fair hearing and particularly the
principle of equality of arms, which requires that all parties have a
reasonable opportunity to present their case under conditions that do not
disadvantage them against other parties to the proceedings.
1.180
The statement of compatibility states that the objective of the measure
is to protect national security information where disclosure may be likely to
prejudice national security. It explains:
In some circumstances, the information will be so sensitive
that the existing protections under the NSI Act are insufficient. The
inadvertent or deliberate disclosure of such national security information may
endanger the safety of individuals as well as the general public, or jeopardise
sources and other intelligence methods. In the absence of the amendments
contained in Schedule 15, a control order may not be able to be obtained
because of the inability to provide such information to the issuing court.[79]
1.181
The committee notes that protecting national security is a legitimate
objective for the purposes of international human rights law.
1.182
However, it would be useful to have additional evidence and reasoning
that explains why the existing NSI Act provisions are insufficient, and
examples as to when information cannot currently be provided in support of a
control order application. For the reasons set out below, it is unclear why the
existing arrangements for protecting information on national security grounds
are insufficient.
1.183
The NSI Act currently allows the Attorney-General to issue a
non-disclosure certificate or witness exclusion certificate, which requires the
court to hold a closed hearing to determine whether the information should be
excluded, disclosed in full or disclosed only as a summary or statement of the
facts.[80]
This means that the subject of the control order and their legal representative
can already be excluded from a hearing, unless the legal representative has
security clearance.
1.184
In addition, the existing definition of 'information' under the NSI Act
is drafted broadly, and includes 'information of any kind, whether true or
false and whether in a material form or not'; and an opinion and a report of a
conversation, whether or not in the public domain.[81]
This allows scope for different types of information to be prescribed as
protected and sensitive, and on that basis to be withheld from persons subject
to civil proceedings (which includes control order proceedings).
1.185
Further, the Criminal Code also currently allows information to be
withheld from the subject of a control order. Specifically, an interim control order
must set out a summary of the grounds on which the order is made, but not if
that information is likely to prejudice national security.[82]
When confirmation of an interim control order is sought, the affected person
must be served with such details as to allow them 'to understand and respond to
the substance of the facts, matters and circumstances which will form the basis
of the confirmation of the order'. However, information is not required to be
served or given if it would prejudice national security (or carry other,
broader risks).[83]
1.186
Noting these existing arrangements for the protection of information in
control order proceedings, the main purpose of the bill appears to be to
provide for circumstances where the subject of a control order and their legal
representative may not be provided with any details at all about the
information being relied on, but which can still be considered by a court, in
control order proceedings.
1.187
In addition to seeking to achieve a legitimate objective, a measure that
limits human rights must also be rationally connected to, and a proportionate
way to achieve, its legitimate objective. The statement of compatibility states
that the measures are proportionate as the court has 'the inherent capacity' to
act fairly and impartially, and there are safeguards in the NSI Act.[84]
1.188
First, the statement of compatibility notes that proposed new
section 38J(1)(c), which provides that the court is to be satisfied that
the subject of a control order 'has been given notice of the allegations on
which the control order request was based', will apply even where no
information supporting those allegations has been given. This means that the
subject of the control order:
...has sufficient knowledge of the essential allegations on
which the control order request is sought (or varied), such that they are able
to dispute those allegations during the substantive control order proceedings.[85]
1.189
The explanatory memorandum gives an example of how this might work in
practice:
...if a control order application alleged the subject had
attended a terrorist training camp in a foreign country, the subject may only
be informed of that allegation in general terms, if a court was satisfied
disclosure of further and more detailed information about the person's
attendance at that terrorist training camp would involve an unacceptable risk
to sensitive national security intelligence sources.[86]
1.190
However, providing a person with 'notice of the allegations' on
which a control order request is based may not give sufficient detail to a
person to be able to dispute the allegations against them. In relation to the
example provided above, it would be sufficient for a person to be told of the
allegation that they had attended 'a terrorist training camp' without any
detail of when or where the camp was held. In the absence of such information
the person may not be able to provide exonerating
evidence (for example an alibi or alternative explanation for their presence at
the camp) to effectively challenge the allegation.
1.191
The European Court of Human Rights has held
that it is permissible to place restrictions on the right to a fully
adversarial procedure if there are strong national security grounds that
require certain information to be kept secret.[87] However, while information can be withheld from a person,
sufficient information about the allegations against the person must be
provided to enable them to give effective instructions in relation to those
allegations.[88] The UK courts have said in relation to control orders that the
standard of disclosure is relatively high, and 'where detail matters, as it
often will, detail must be met with detail'; and there must be 'a real
opportunity for rebuttal'.[89] A bare allegation without detail of what, when and where an
act is said to have occurred (for example, that a person was involved in 'a
terrorist act'), may not enable a person to lead evidence to refute that allegation.
1.192
The COAG review extensively reviewed all
aspects of the control orders regime.[90] It noted that the existing legislation may limit the right to
a fair trial, and recommended that it be amended to provide for a minimum
standard concerning the extent of the information to be given to the subject of
a control order. It stated:
It is intended to enable the person and
his or her ordinary legal representatives of choice to insist on a minimum
level of disclosure to them. The minimum standard should be: "the applicant
must be given sufficient information about the allegations against him or her
to enable effective instructions to be given in relation to those allegations."[91]
1.193
The proposed amendments have not been
enacted.
1.194
In addition, unlike schemes in
jurisdictions such as Canada and the United Kingdom, which allow a special
advocate to be involved in proceedings and seek instructions from an affected
person (albeit without disclosing the full information to the person), the
scheme in the NSI Act and as proposed to be amended would allow a person's
legal representative to be excluded entirely from a hearing or from accessing
the information.
1.195
With regard to these considerations, it is
unclear why it is necessary to exclude a person's legal representative, even if
they are security-cleared, from a hearing to determine if information will be
considered by the court but not provided to the subject of the control order.
Excluding a person's legal representative in such circumstances does raise
questions as to how the measure may be compatible with the principle of
equality of arms.
1.196
Second, the statement of compatibility
notes that, in addition to having regard to the potential prejudice to national
security in not making an order to exclude information, the court must have
regard to whether making the order 'would have a substantial adverse effect on
the substantive hearing in the proceeding'. The statement of compatibility
states that the court must therefore expressly contemplate the effect of any
potential order on a party's ability to receive a fair hearing.[92]
1.197
However, consideration of 'a substantial
adverse effect on the substantive hearing' is not the same as requiring the
court to consider whether restricting information would limit a person's right
to a fair hearing—rather, it requires consideration of the overall effect on
the hearing, including in relation to ensuring a control order may be imposed.
1.198
Third, the statement of compatibility notes
the general discretion of the court not to make (control) orders:
Where a legislative scheme departs from
the general principles of procedural fairness, the question for the judiciary
will be whether, taken as a whole, the court's procedures for resolving the
dispute accord both parties procedural fairness and avoid practical injustice.[93]
1.199
It is unclear how a court's discretion
nevertheless may ensure procedural fairness to both parties. While the
discretion of the court not to make a relevant order is important to whether a
fair hearing will be achieved in a particular instance, the committee's
analysis of the compatibility of the legislation itself must look to whether
the legislation would enable an order to be made that may unjustifiably limit
the right to a fair hearing.
1.200
The committee has assessed the amendments allowing a court to rely on
information when making or varying a control order that has not been disclosed
to the person subject to the control order or their legal representative
against article 14 of the International Covenant on Civil and Political Rights
(right to a fair hearing).
1.201
As set out above, the amendments engage and limit the right to a fair
hearing. The committee therefore seeks the advice of the Attorney-General as
to:
-
whether there is reasoning or evidence that establishes that
the stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective
(particularly whether there is evidence demonstrating that the existing powers
under the National Security Information (Criminal and Civil Proceedings) Act
2004 and the Criminal Code Act 1995 to redact or summarise
information or exclude witnesses are insufficient); and
-
whether the limitation is a reasonable and proportionate
measure for the achievement of that objective (particularly whether it is
proportionate to exclude a security-cleared legal representative from a hearing
as to whether information should be withheld from the subject of a control
order; and for allegations on which a control order request is based to be
provided to the subject of a control order, without a requirement that
sufficient information is provided to allow a real opportunity to rebut those
allegations).
Privacy Amendment (Protecting Children from Paparazzi) Bill 2015
Sponsor:
Mr Katter MP
Introduced: House of
Representatives, 23 November 2015
Purpose
1.202
The Privacy Amendment (Protecting Children from Paparazzi) Bill 2015
(the bill) seeks to amend the Privacy Act 1988 to insert a new criminal
offence provision for persons who harass the children of celebrities or any
other person in certain circumstances.
1.203
Measures raising human rights concerns or issues are set out below.
Offence of causing a victim to be annoyed or distressed
1.204
The new criminal offence provision in the bill prohibits engaging
in conduct in relation to a child under 16 years which causes the child, or
would be likely to cause a reasonable person in the position of the child, to
be annoyed, alarmed, tormented, or terrorised, or causes emotional distress,
and the conduct is engaged in because of the vocation or occupation of a
parent, carer or guardian of the child. The prohibited conduct involves
attempting to photograph or record the child's image or voice, and following or
lying in wait for the child.
1.205
The committee considers that the bill promotes the right to privacy and
the rights of the child. The committee also considers that the new offence
provision prohibiting conduct that causes a victim to be annoyed or distressed
engages and limits the right to freedom of expression.
Right to freedom of expression
1.206
The right to freedom of opinion and expression is protected by article
19 of the International Covenant on Civil and Political Rights (ICCPR). The
right to freedom of opinion is the right to hold opinions without interference
and cannot be subject to any exception or restriction. The right to freedom of
expression extends to the communication of information or ideas through any
medium, including written and oral communications, the media, public protest,
broadcasting, artistic works and commercial advertising.
1.207
Under article 19(3), freedom of expression may be subject to limitations
that are necessary to protect the rights or reputations of others, national
security, public order (ordre public)[94],
or public health or morals. Limitations must be prescribed by law, pursue a
legitimate objective, be rationally connected to the achievement of that
objective and a proportionate means of doing so.[95]
Compatibility of the measure with
the right to freedom of expression
1.208
The statement of compatibility does not acknowledge that any rights are
engaged by the bill, and as such has not explained how an offence for conduct
that annoys, alarms, or distresses a person is a justifiable limit on the
freedom of expression.
1.209
The offence prohibiting conduct that annoys, alarms or distresses a
person is very broad. It would prohibit conduct that might be simply irritating
to a person, such that they feel annoyed. The offence captures conduct by any
person engaging in the conduct in a public space, regardless of whether they
are in fact 'paparazzi' or simply members of the public. Even if the conduct
does not actually annoy, alarm or distress the child in question, a person can
still be convicted if their conduct is found to be 'likely to cause a
reasonable person in the position of the victim' to be annoyed, alarmed or distressed.
1.210
A key aspect of whether a limitation on a right can be justified is
whether the limitation is proportionate to the objective being sought,
including whether there are less restrictive ways to achieve the same aim. The
right to freedom of expression includes a right to use expression or behave in
a way 'that may be regarded as deeply offensive'.[96]
The right to freedom of expression protects not only favourable information and
ideas but also those that offend, shock or disturb because 'such are the demands
of that pluralism, tolerance and broadmindedness without which there is no
democratic society'.[97]
The distribution of media depicting celebrities and their children is still
protected by freedom of expression regardless of the worth or merit of such information.
The right to freedom of expression, however, can be permissibly limited and the
content of the information being communicated will be relevant to whether the
limitation is proportionate.
1.211
In order to limit the right to freedom of expression it must be
demonstrated that there is a specific threat that requires action which limits
freedom of expression, and it must be demonstrated that there is a direct and
immediate connection between the expression and the threat.[98]
It is not clear to the committee that the broad wording of the offence meets
these criteria.
1.212
The committee's usual
expectation where a measure may limit a human right is that the accompanying
statement of compatibility provide a reasoned and evidence-based explanation of
how the measure supports a legitimate objective for the purposes of
international human rights law. This conforms with the committee's Guidance
Note 1, and the Attorney-General's Department's guidance on the preparation of
statements of compatibility, which states that the 'existence of a legitimate
objective must be identified clearly with supporting reasons and, generally,
empirical data to demonstrate that [it is] important'. To be capable of
justifying a proposed limitation of human rights, a legitimate objective must
address a pressing or substantial concern and not simply seek an outcome
regarded as desirable or convenient. Additionally, a limitation must be
rationally connected to, and a proportionate way to achieve, its legitimate
objective in order to be justifiable in international human rights law.
1.213
The committee's assessment against article 19 of the
International Covenant on Civil and Political Rights (right to freedom of
expression) of the offence provision for conduct that annoys, alarms, or causes
distress raises questions as to whether the offence is compatible with the
right to freedom of expression.
1.214
As set out above, the offence provision for conduct that annoys,
alarms, or causes distress engages and limits the right to freedom of
expression. The statement of compatibility does not justify that limitation for
the purposes of international human rights law. In accordance with paragraph [1.212],
the committee therefore seeks the advice of the legislation proponent as to:
-
whether the proposed changes are aimed at achieving a
legitimate objective;
-
whether there is a rational connection between the limitation
on free expression and that objective; and
-
whether the limitation on free expression is a reasonable and
proportionate measure for the achievement of that objective.
Migration Regulations 1994 - Specification of Required Medical Assessment -
IMMI 15/119 [F2015L01747]
Portfolio:
Immigration and Border Protection
Authorising
legislation: Migration Regulations 1994
Last day to disallow: Exempt from disallowance
Purpose
1.215
The Migration Regulations 1994 - Specification of Required Medical
Assessment - IMMI 15/119 (the instrument) prescribes classes of people who are
required to take medical assessments when entering Australia.
1.216
Measures raising human rights concerns or issues are set out below.
Medical assessments for certain visa applicants
1.217
The instrument specifies that certain visa applicants are required to
take certain medical tests in order to satisfy decision makers that they meet
the health requirements for the visa for which they have applied.
1.218
The instrument alters the arrangements set by the previous instrument[99]
in a number of ways, including moving from a 'three tiered' system, specifying
countries as 'low', 'medium' and 'high' risk, to a two tiered system. Most
significantly, the instrument reduces the period of temporary stay for which a
medical assessment is generally not required from 12 to six months.
1.219
The instrument would see more people who intend to spend between six and
12 months in Australia needing to undergo a medical assessment before they are
granted a visa. As a result, more people may have their applications rejected
on health grounds. The required medical tests may exclude individuals who have
a medical condition that is a disability for the purposes of international
human rights law.
1.220
The committee understands and supports the importance of protecting the
Australian community from public health risks and containing public expenditure
on health care and services. It considers that appropriate health checks are
required in order to better promote the right to health. However, as these
changes widen the circumstances in which persons with a disability may not be
granted a visa, the instrument engages the right to equality and non-discrimination
for persons with a disability, and the committee requires further information
to properly assess the impact of the instrument on this right.
1.221
The committee also notes that subjecting individuals to medical testing
will also engage and limit the right to privacy, but considers that in the
context of the visa application process this is likely to be a justifiable
limitation.
Right to equality and
non-discrimination (rights of persons with disabilities)
1.222
The right to equality and non-discrimination is protected by articles 2
and 26 of the International Covenant on Civil and Political Rights (ICCPR).
1.223
This is a fundamental human right that is essential to the protection
and respect of all human rights. It provides that everyone is entitled to enjoy
their rights without discrimination of any kind, and that all people are equal
before the law and entitled without discrimination to the equal and
non-discriminatory protection of the law.
1.224
The ICCPR defines 'discrimination' as a distinction based on a personal
attribute (for example, race, sex or on the basis of disability),[100]
which has either the purpose (called 'direct' discrimination), or the effect
(called 'indirect' discrimination), of adversely affecting human rights.[101]
The UN Human Rights Committee has explained indirect discrimination as 'a rule
or measure that is neutral on its face or without intent to discriminate',
which exclusively or disproportionately affects people with a particular
personal attribute.[102]
1.225
The Convention on the Rights of Persons with Disabilities (CRPD) further
describes the content of these rights, describing the specific elements that
State parties are required to take into account to ensure the right to equality
before the law for people with disabilities, on an equal basis with others.
1.226
Article 5 of the CRPD guarantees equality for all persons under and
before the law and the right to equal protection of the law. It expressly
prohibits all discrimination on the basis of disability.
Compatibility of the measure with
the right to equality and non-discrimination
1.227
The instrument is not accompanied by a statement of compatibility as the
instrument is not specifically required to have such a statement under section
9 of the Human Rights (Parliamentary Scrutiny) Act 2011 (the Act).
However, the committee's role under section 7 of the Act is to examine all
instruments for compatibility with human rights (including instruments that are
not required to have statements of compatibility).
1.228
The instrument widens the circumstances in which temporary visa
applicants may have the grant of a visa refused on health grounds. As persons
with a disability necessarily have pre-existing health conditions, they may be
disproportionately affected by this instrument. The concept of indirect
discrimination in international human rights law looks beyond the form of a
measure and focuses instead on whether the measure could have a
disproportionately negative effect on particular groups in practice. However,
under international human rights law such a disproportionate effect may be
justifiable.
1.229
As stated above, the committee understands and supports the
importance of protecting the Australian community from public health risks and
containing public expenditure on health care and services; and considers that appropriate
health checks are required in order to better promote the right to health.
However, as the instrument is not accompanied by a statement of compatibility,
the committee does not have enough information before it to establish if the
instrument does impact disproportionately on persons with disabilities and, if
so, whether any such disproportionate effect is justifiable.
1.230
The committee considers that the requirement for medical
assessments for temporary visa applicants engages and may limit the right to
equality and non-discrimination under articles 2 and 26 of International
Covenant on Civil and Political Rights and the Convention on the Rights of
Persons with Disabilities.
1.231
Noting that the instrument was not accompanied by a statement of
compatibility, the committee therefore seeks the advice of the Minister for
Immigration and Border Protection as to:
-
whether the proposed changes are aimed at achieving a
legitimate objective;
-
whether there is a rational connection between the limitation
and that objective; and
-
whether the limitation is a reasonable and proportionate
measure for the achievement of that objective.
Telecommunications (Interception and Access) Amendment (Public Interest
Advocates and Other Matters) Regulation 2015 [F2015L01658]
Portfolio:
Attorney-General
Authorising
legislation: Telecommunications (Interception and Access) Act 1979
Last day to disallow: 22 February
2015 (Senate)
Purpose
1.232
The Telecommunications (Interception and Access) Act 1979 (the
Act) prohibits the Australian Security Intelligence Organisation (ASIO) or
enforcement agencies from authorising access to telecommunications data
relating to a journalist, or their employer where the purpose is to identify a
journalist's source, unless a warrant has been obtained (a journalist
information warrant).[103]
1.233
The Act requires that when considering an application for a journalist
information warrant, the minister (in the case of ASIO) or the issuing
authority (in the case of enforcement agencies) is satisfied that the public
interest in issuing the warrant outweighs the public interest in protecting the
confidentiality of the identity of the source. The Act provides that in making
that assessment, the minister or issuing authority is to have regard to any
submissions made by a 'Public Interest Advocate' (PIA).[104]
1.234
The Telecommunications (Interception and Access) Amendment (Public Interest
Advocate and Other Matters) Regulation 2015 (the regulation) prescribes the process requirements for applying for a journalist
information warrant and matters relating to the performance of the role of a
PIA, including:
-
providing that only the most senior members of the legal
profession may be appointed as PIAs and prescribing levels of security
clearance for certain PIAs;
-
requiring that agencies provide a PIA with a copy of a proposed
request or application for a journalist information warrant or notify a PIA
prior to making an oral application; and
-
enabling PIAs to receive further information (or a summary of
further information) provided to the minister or issuing authority by agencies
and to prepare new or updated submissions based on that information.
1.235
Measures raising human rights concerns or issues are set out below.
Background
1.236
The Act was amended by the Telecommunications (Interception and Access)
Amendment (Data Retention) Bill 2014 (the bill) to introduce the journalist
information warrant and PIA schemes. The committee commented on the bill in its
Fifteenth Report of the 44th Parliament, its Twentieth
Report of the 44th Parliament and its Thirtieth Report
of the 44th Parliament.[105]
Because the journalist information warrant and PIA schemes were introduced as
amendments to the bill they did not form part of the committee's consideration.
1.237
The committee considers that the journalist information warrant and PIA
schemes that were introduced as amendments to the bill improve the
compatibility of the bill. Requiring a warrant before journalist's metadata can
be accessed ensures that there is at least some assessment of both the law
enforcement need for the metadata and the importance of protecting journalists'
sources which contribute to reporting in the public interest before the
metadata is accessed by law enforcement agencies.
Role of Public Interest Advocate in journalist information warrant process
1.238
The regulation prescribes the process for a PIA to make a submission
regarding an application for a journalist information warrant. However, the
regulation does not make provision for the PIA to access or speak with the
journalist or other person affected by an application for a journalist
information warrant, nor does it guarantee that any submission or input from
the PIA regarding such an application would, in fact, be considered prior to
the issuance of a warrant. The regulation also provides the minister with a
discretion to provide the PIA with only a summary of any further information
provided to the minister or issuing authority relating to proposed journalist
information warrant requests or applications.
1.239
The committee considers that the regulation, while seeking to better
promote the protection of privacy and the right to freedom of expression by prescribing
a warrant process for accessing journalist's metadata, also engages and may
limit multiple rights.
Multiple rights
1.240
Accessing telecommunications data relating to a journalist, or their
employer, where the purpose is to identify a journalist's source, together with
the journalist information warrant and PIA scheme, engages and may limit
multiple rights, including:
-
right to an effective remedy;[106]
-
right to a fair hearing;[107]
-
right to privacy;[108]
and
-
right to freedom of expression.[109]
1.241
Accessing a journalist's metadata may limit their right to privacy as
the information can reveal important information about the personal life of the
journalist including who they contact and where they travel.
1.242
Accessing a journalist's metadata can limit freedom of expression
because it may make it harder for journalists to find sources for important
news reporting in the public interest if sources know that they may be
identified by metadata.
1.243
As the approval process for accessing a journalist's metadata does not
include notifying the party whose data is accessed, that person will not know
if their data is accessed improperly and, as such, would be unable to seek
redress. This engages the right to an effective remedy (though it is noted that
any limitation on this right may be justifiable).
1.244
The right to a fair hearing may also be engaged by the regulation, as it
does not make provision for the PIA to access or speak with the journalist or
other person affected by an application for a journalist information warrant,
nor does it guarantee that any submission or input from the PIA regarding such
an application would in fact be considered prior to the issuance of a warrant.
While it may be justifiable not to notify individuals in advance that their
metadata may be accessed, where metadata access occurs on an ex parte basis,
even with the involvement of a PIA, it may not be fully in accordance with the
procedural guarantees provided for by the right to a fair hearing.
Compatibility of the measures with multiple rights
1.245
The statement of compatibility states that the regulation engages and
promotes the rights to freedom of expression and privacy. However, it provides
no assessment of any limitation on those rights or of the compatibility of the
measures with the rights to an effective remedy or a fair hearing.
1.246
The statement of compatibility states that the measures:
...facilitate independent scrutiny of application for warrants
enabling access to data in certain circumstances.
...ensure the [Public Interest] Advocates are appropriately
skilled and independent and able to advocate in the public interest.[110]
1.247
While the committee considers that the journalist information warrant
and PIA schemes seek to better promote the protection of privacy and the right
to freedom of expression by prescribing a warrant process for accessing
journalist's information, the regulation may lack sufficient safeguards to
appropriately protect these rights, as well as the right to an effective remedy
and a fair hearing. In particular:
-
the regulation does not enable the PIA to seek instructions from
any person affected by the journalist information warrant (namely the
journalist or their potential sources). As such, the journalist has no
opportunity to provide instructions to the PIA on the substance of an
application for a journalist information warrant, or to present a case against
such an application, limiting the effectiveness of the PIA. The committee notes
there may be circumstances where a journalist could not be notified in advance
of a warrant being sought, for example when it might jeopardise an ongoing
investigation. However, the committee notes that the PIA scheme is established
in such a way that the PIA cannot seek instructions from any person who may be
affected by a warrant in any circumstance, including where it would have no
impact on an ongoing investigation;
-
under the regulation the minister has the discretion to provide
the PIA with only a summary of further information provided to the minister or
issuing authority relating to proposed journalist information warrant requests
or applications. As such, the PIA may not be in a position to effectively mount
a case against an application for a journalist information warrant. It is
unclear why it is necessary to provide PIAs with only a summary of further
information if the intention of the regulation is to ensure PIAs are able to
advocate in the public interest; and
-
the regulation provides no procedural guarantees to ensure the
PIA is able to make a submission on an application for a journalist information
warrant prior to the issuance of a warrant. The regulation sets out a process
by which a PIA must be notified of an application, but it does not require that
the application for a warrant be stayed pending any submission from a PIA. As a
result, a journalist information warrant may be issued without the benefit of
any possible submissions that could be made by the PIA.
1.248
The committee notes that the statement of compatibility refers to a
range of procedural safeguards that apply to the journalist information warrant
regime. However, it is unclear whether the measures identified above operate to
facilitate the independent scrutiny of applications for journalist information
warrants or ensure that PIAs are able to advocate in the public interest.
1.249
The committee's assessment against articles 2, 14, 17 and 19 of the
International Covenant on Civil and Political Rights (right to an effective
remedy, fair hearing, privacy and freedom of expression) of the journalist
information warrant and public interest advocate (PIA) schemes, and the process
by which a person's data can be accessed without their knowledge, raises
questions as to the compatibility of the regulation with these rights.
1.250
As set out above, the amendments engage and may limit the right to an
effective remedy, fair hearing, privacy and freedom of expression.
The statement of compatibility does not sufficiently justify that limitation
for the purposes of international human rights law. The committee therefore
seeks the advice of the Attorney-General as to whether the limitation is
proportionate to the stated objective, in particular:
-
whether the process that does not provide an affected
journalist, in any circumstance, with an opportunity to provide instructions to
the PIA on the substance of an application for a journalist information
warrant, or to present a case against such an application, is a reasonable and
proportionate limitation (though the committee emphasises that it recognises
there may be circumstnaces where prior notification would be inappropriate, in
particular where it might jeopardise an ongoing investigation);
-
whether giving the minister the discretion to provide a PIA
with only a summary of further information provided to the minister or issuing
authority relating to proposed journalist information warrant requests or
applications is a reasonable and proportionate limitation; and
-
whether permitting a journalist information warrant to be
issued without the benefit of any possible submissions that could be made by
the PIA is a reasonable and proportionate limitation.
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