Democracy, Human Rights & Social Issues: Dr Sev Ozdowski OAM (2005)

Democracy, Human Rights & Social Issues

Human Rights, Mental Health & Anti-Terror Laws in Australia 1-day Conference, Mitchell Theatre, Sydney Mechanic"s School of Arts, Discrimination and Anti-Terror Laws: "Democracy, Human Rights & Social Issues" by Dr Sev Ozdowski OAM, Australian Human Rights Commissioner, Friday 2 December 2005

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Acknowledgements

I would like to acknowledge the traditional owners of the land on which we stand, and pay my respects to their elders both past and present. I make this statement at any function where I speak in order to:

• Pay my respects to the oldest continuous culture in the world;
• And to stress that Australia is a diverse society and that the first Australians are an important part of this diversity;
• And to demonstrate that we aspire to a just and fair Australia for all.

Maqsood Alshams, David Bernie, Distinguished guests, ladies and gentlemen.

It gives me great pleasure to deliver my last official speech as Human Rights Commissioner to this august gathering!

The 3 big Gs

Allowe me to start by drawing your attention to the 3 big Gs, namely:

1. Globalisation;
2. Global Warming;
3. Global Terror.

The big 3 "globals" drew my memory back to the work of that communications and media guru Marshall McLuhan and his phrase that circled the globe in the late 60s: "global village".

I, think that in 1967 when Marshall McLuhan coined the phrase "the world is a global village" in his iconic book: "The Medium is the Massage" he undoubtedly had in mind elements of the first of the big 3, namely Globalization.

After all, in that book he foreshadowed the rise of the internet, which as much as any single thing is responsible for Globalization - it has to be among the top 10 contributing factors on anybody"s list.

But I doubt whether even McLuhan could have forseen the rise of the next two.

In respect of Global Warming, the scientific evidence was not being monitored in the 60s and with respect to Global Terror, McLuhan was teaching and writing, when the Cold War was at its very iciest.

When the hands of the famous "Doomsday Clock" were set at two minutes to midnight and Dr Strangelove was alive and well in both the USA and the USSR. Where stony faced generals wearing reflective sunglasses sat with their fingers poised on the buttons of the ICBM nuclear bombs, and MAD - mutually assured destruction - was the official "peace strategy".

Of course it is interesting to note, before I leave the subject of Globalization and Global Warming to concentrate on the proposed new law to combat Global Terror, that if the scientists are right about Global Warming - and I emphasise that I remain agnostic on that subject - then the potential consequences dwarf those we are encountering with Global Terror; and legislators from mainstream industrial nations would be well advised to start enacting a menu of "anti-global warming measures".

Global Terror

But turning now to the advent of Global Terror, I believe fair minded people would acknowledge that at the very least we are currently facing a previously unrecognized global threat, certainly since the end of WWII.

I mean by this, that while there have been terrorist issues to deal with in the past, I think they have been more localized and the aims of the terrorists more comprehensible and do I dare suggest, at least potentially realisable.

Historically, terrorists often directed their murderous actions against the head of state; in this context one thinks of:

• President McKinley of America, gunned down by Leon Czolgosz, the Polish immigrant become anarchist;
• Czar Alexander II of Russia who survived countless attempts by anarchists to assassinate him, until 1881 when a massive bomb achieved its goal;
• And possibly the momentous of all "the shots that echoed across Europe" when Austrian Archduke Franz Ferdinand was assassinated in Sarajevo, plunging Europe into WWI.

In contemporary times one thinks of the IRA and of the Basque Separatist Movement.

Even in our own neck of the woods, one thinks of Tahiti and Bougainville, which witnessed relatively small scale terrorist acts perpetrated by supporters of the local "kanak separatist movement".

Global Terrorism as the gravest threat to human rights

But whether local or global, terrorist attacks against civilian targets constitute the gravest possible assault on human rights imaginable.

Contemporary acts of terrorism, in particular, are conceived and perpetrated by a few with the deliberate intent of causing indiscriminate death and serious injury to their victims - whoever they happen to be - and in the current global context, are premised on an entirely unsustainable concept: namely the total subjugation of non believers to a specific "religio-political" ideology".

It is important, however, to note that these arbitrary and unjustifiable acts not only violate the human rights of their victims, but also circumvent both the democratic principles and the values established by the various international human rights conventions - the very essence of the society against which they are perpetrated.

In other words, our civil society with long establish civil liberties and political and religious freedoms may also become a victim of terrorism.

Nevertheless, the proposed curtailing of some personal freedoms explicit in the Government"s response to the advent of global terror, is broadly something we accept as necessary.

But it is also important to realise that the protection of human rights is one critically important aspect any government must consider and address when preparing its response to terrorist acts against its citizens going about their daily lives.

This is why most mainstream industrial nations have used a Bill of Rights to try and ensure that their new laws are proportional in response to the threat of Global Terror.

It should also be noted that in previous times, that is pre 9/11, terrorism offences have been dealt with under the existing criminal law regime with a very high standard of proof and associated procedural fairness and they have been used to punish perpetrators for offences already committed or for conspiracy to commit an offence.

Preventative measures

The other unusual feature of the current proposals to counteract Global Terror, is that many of them seek to be preventative in nature. To forestall an attack.

Such measures were a feature of Australia"s response to the exigencies of WWII, but they were wartime measures.

But the government does not wish us to think that the fight against Global Terror is the same as a declared war. It is for this reason that it has not invoked article 4 of ICCPR, which permits the derogation of some human rights, when a State "declares" a situation of public emergency.

Therefore we must consider the effect of these proposals against a normal peacetime backdrop.

This presents civil society with an additional challenge.

Just how much of the human rights menu can be reasonably abrogated, in the interests of allowing law enforcement agencies to prevent an attack, before it happens.

The 4 golden guides to examining anti global terror proposals

I do not intend to give a running commentary on the perceived strengths and weaknesses of the latest Commonwealth/ State enacted anti-terror bills. Although I do have grave doubts about some aspects of these bills and especially about the anti sedition provisions.

My personal belief is that good ideas drive out the bad.

If people wish to stand up and spout nonsense, let them; so people can judge the idiocy for themselves.

Escaping from communist Poland and the eventual collapse of communist ideology, taught me the dangers of restrictions on free speech as well as the ultimate futility of it.

When one considers that despite over 40 years of communist suppression, Poles remained committed to the concepts of free trade unions; the superiority of the free market economy and the desirability of freely held democratic elections, it says much about the futility of "bad ideas".

However, as to the practicalities of the implementation of these anti-sedition proposals, only time will tell.

But for a more comprehensive analysis of these proposals, the recent review by the Senate Legal and Constitutional Legislation Committee has done an excellent job of critiquing the provisions in the Bill.

So, I will lay down my 4 golden guides which should inform this law and any subsequent amendments:

• It should comply with all international human rights principles that Australia is a party to; as that obviously includes ICCPR, that can only be achieved via a Bill of Rights;

• Its scope must not be too broad, in that its intended application can only be to counter Global Terrorism. It must not be capable of subsequent application to another unintended factual situation, that is clearly not associated with Global Terror;

• A "sunset clause" of reasonable duration must apply;

• Any action taken pursuant to that law must, within a reasonable time frame, be subject to normal judicial scrutiny. To avoid such scrutiny goes to the heart of the "separation of powers" doctrine and is unconstitutional in intent, if not in fact. The avoidance of judicial overview will leave the Executive facing accusations of creating a police state.

Here I would like to quote from Professor George Williams, who is chairing Victoria"s Human Rights Consultation Committee, from his 2003 NPC address:

"The (ASIO) Bill must NOT be assessed as if we have become divorced from our history and shared values since September 11. This context is an important source of guidance at a time of community fear and national grief after the Bali attack.

I think those cautionary words have as much, if not more strength today, as they did when George uttered them in 2003.

Recent history not supportive of enforcement agencies operating without timely judicial review

The Palmer Report on Cornelia Rau and the Comrie Report on Vivian Alvarez has highlighted how officials in the Immigration Department have been exercising considerable power over other persons present in Australia, with little or no "consciousness" of what effect their actions were having on those persons" civil rights.

Or as Mick Palmer put it:

".....the DIMIA management approach to the complexities of implementing immigration detention policy.........fails to deliver outcomes required by the Government in a way that is firm but fair and respects human dignity."

The Palmer report also observed that the Migration Act provided DIMIA officials with a measure of detention power that regular police officers could never dream of exercising - and that on occasions that capacity had not been responsibly exercised.

The Comrie Report with respect to Vivian Alvarez made the same observation, but in even stronger terms.

So we have some good contemporary examples of how badly things can go wrong when detention powers are exercised in an environment that does not include timely judicial review.

In fact the Labor Party recently expressed concern that if ASIO officials mishandled their expanded powers in the way DIMIA officials have, the results could be truly momentous.

As Terry Higgins, the Chief Justice of the ACT Supreme Court, observed recently, as guest speaker at a function:

"If the war (on terror) is open-ended, its boundaries ill defined, how can we guarantee that the recent encroachments on civil liberties won't continue ad infinitem? The sunset provisions for the law permitting detention for questioning have come up for renewal, and of course the Government is seeking to extend the operation of those powers.

But how many times will such extensions be granted? What is brought in with a dramatic bang often stays with an insidious whisper; these laws are like a dubious party guest who refuses to leave. How do we ensure that our fundamental freedoms don't waste away under the weight of volumes of long forgotten, dusty, neglected counter- terrorism legislation? The argument that it is simply a matter of 'extraordinary times call for extraordinary measures' is initially persuasive, but less compelling when subject to closer scrutiny.

History has shown that, unfortunately, once taken away, rights don't tend to hover in the stratosphere, waiting to be reactivated. There is the problem that measures that are introduced during times of national emergency have a nasty habit of outstaying their welcome."

But it is not only judges, the intelligentsia or as Paul Keating famously described them: "the pointy heads" who are concerned about the potential loss of liberties. A recent project of mine discovered that the general community shares these apprehensions, even our young people.

Rights of Passage - A Dialogue with Young Australians about Human Rights

I have recently completed a year long project which talked to young people in Australia about their knowledge of human rights, using a combined focus group/survey approach. Part of the focus group, involved examining a human rights scenario in a case-study format.

One of those case studies involved "Abdullah", who was the subject of an ASIO investigation.

The ASIO officers wished to question him, without his lawyer present and without charging him. When Abdullah objected to this he was informed that if he did not comply, he could be taken from his home and questioned for 7 days.

The students" responses were very interesting.

Almost all respondents immediately understood this scenario to be about the balance between the rights of the community versus the rights of the individual.

Opinions ranged from supporting the rights of the individual at all costs, to supporting the idea that individual rights may need to be curtailed if it is with the best interests of the community in mind.

Many respondents, while believing the situation to be lawful, did not agree with the infringement of human rights for the individual in question:

"It was fair for them to take him in and question him because they thought he might have been a terrorist, but to keep him in gaol for seven days or something - that"s not right." Male 14-16

"It seems unfair ... they"ve already said he"s not being charged so therefore he"s not a criminal, yet he"s being treated with less rights than a criminal." Male 17-19

Many respondents who felt that the situation was unfair argued that if there was sufficient evidence to question him, then he should be arrested and charged, as with any other type of offence.

Others mentioned that this law seemed to undermine some basic principles, such as the right to legal representation, the right to remain silent, and the right not to be taken into custody unless charged:

"He felt under threat and so acted under duress. He needs to be made aware of what he is being charged with or investigated [for]. And he can"t be held for an indefinite period of time without charge." Female 17-19

"It"s like they"re overruling the old laws, like you"re allowed to have a lawyer. And they shouldn"t be allowed to do that." Female 14-16

Alternatively, there was a perceived danger that an individual in the community may abuse this law by reporting someone they simply did not like to ASIO, with the result that they may be interrogated for up to a week without charge.

Some respondents expressed a regret that laws like this seemed to be passed without any public consultation, resulting in large sectors of the population not being aware of new laws:

"[The government have] brainwashed people to be scared of Muslims and stuff and terrorists. Then they put all these nice, warm things on TV like the Royal Wedding and the Pope. Take your mind off that while they introduce new laws ." Male 14-16

On the other hand, a large proportion agreed with the measures described in this case study, though with limiting factors.

Some said that the rights of the individual may need to be curtailed if it was to protect the rights of the community:

"We looked at the bigger picture and looked at the national security issues which were at stake, and it was just seven days of one person"s life which could almost save, potentially, thousands of people if it was a big issue. " Male 14-16

"If the whole country is in trouble, sometimes they have to do this, so you just have to say, "Look, we"re not going to worry about your rights at the moment, we just have to get this done. " " Female 14-16

These respondents believed that the threat of terrorism was a special case, and that special measures such as these were an important part of tackling the problem.

A small number even supported the idea of "reversing" the presumption of innocence in cases of investigating terrorist activity:

Q: You are willing to reverse the onus of proof? Not "innocent until proven guilty" but rather "guilty until proven innocent"?

"Yes." Male 14-16

"Sort of. Only in certain situations where it involves the lives of many people. It"s not a decision to be taken lightly but, yeah." Male 14-16

Given that there was generally some support for the new "anti-terror" laws in each group, respondents in the majority of focus groups were asked if they would support torture in certain cases.

There was very little support for the idea, even if, hypothetically, many lives could be saved by the information procured in this way:

"They can"t torture him, by human rights laws." Male 14-16

"If you are tortured you are going to have some serious permanent psychological issues with not trusting people and not trusting authority. But whereas if you"ve just been locked up, yes it is bad and you have had your freedom taken away for a week, but it is in the greater interest of the community. " Male 14-16

Some respondents pointed out that torture did not often produce reliable information even if it could be morally justified, while others believed that locking someone up for seven days already constituted torture, especially if there was no independent means of monitoring what took place "behind closed doors":

"It comes back to that, I forget what the case was, but there was that gentleman who they held him in custody for an extended period of time. They hadn"t provided him with water and things like that. And eventually he just said, so they"d let him go, he said "yes I"ve committed a crime". They later found out that he hadn"t committed the crime." Male 17-19

Q: He just wanted to get out .

"Yeah, exactly. He just wanted to go and see his family. So this seven days is a form of torture in a sense where you don"t know the conditions, you"re going to be in a locked room, you"re not going to be treated as a human. So it just seems unfair." Male 17-19

Overall, respondents seemed to accept that measures like these new "anti-terror" laws would be introduced during extreme times and as a response to direct threats, but there was rarely consensus on how to balance the rights of the individual with the rights of the community:

"It"s, like, no matter which way you draw the line there"s always going to be somebody who doesn"t like the way that line is drawn." Female 17-19

In conclusion, these young people felt that anti-terrorism measures should be dealt with under existing criminal law.

In the event that special measures had to be introduced, they believed they ought to be clearly defined, proportionate to the actual threat and related to specific threats or offences.

Overall, there was some concern that no measures were in place (along the lines of a Bill of Rights) to prevent fundamental rights (such as the right to independent legal representation) from being undermined or overridden by newly introduced legislation.

So what next?

Most of you present would be aware that Australia"s Constitution does not offer much protection for individual rights. For the record those that are protected consist of:

• the right to vote (Section 41) - although still to be confirmed by the High Court as explicitly thus;
• the right to a trial by jury in the State where the alleged federal offence took place (Section 80);
• the denial of federal legislative power with respect to religion (Section 116); and
• the prohibition against discrimination on the basis of State of residency (Section 117).

There are also two "economic rights":

s.92 guaranteeing freedom of interstate trade; and

s.51 mandating payment on just terms for property acquired by the Commonwealth.

The High Court has also found that a number of rights, while not expressly stated in the Australian Constitution, can be implied. These include:

• The Commonwealth Parliament cannot pass laws that adjudge a person to be guilty of a crime. That function is for the courts alone.
• The freedom to discuss matters relating to Australian government so that voters can participate effectively in elections.

The Constitution is silent in relation to numerous other rights that are well recognised in the constitutions of other Western democracies, usually by a Bill of Rights. For example, the Constitution does not guarantee:

• the fundamental freedoms such as the freedom of association, freedom of movement, freedom of peaceful assembly, freedom of thought, belief and opinion, and freedom from arbitrary arrest or detention;
• the right to a fair trial or due process;
• equality of all persons in Australia before the law.

Your presence here today indicates your probable involvement with, and support for, civil society in Australia.

My call to arms to you today is the necessity to actively campaign for a Bill of Rights.

As I said in my message of support to the rally announcing New Matilda"s campaign for a bill of rights, organized by Susan Ryan and John Menadue, at Sydney Town Hall recently:

" As many of you here would know, over the last 5 years I have been a strong public advocate for the need for a national, legislated bill of rights. It will therefore come as no surprise to you that I do not feel the traditional democratic bulwarks any longer provide an adequate shield for Australia"s residents when their civil liberties are under pressure. They are currently under pressure and I expect them to remain so for a considerable period of time. The only realistic solution is an Australian Bill of Rights".

Bill of Rights allows you to measure proportionality

I am not suggesting that the pre-existence of a Bill of Rights would automatically preclude a government from implementing legislation that places new restrictions on the free exercise of civil liberties.

After all the current British Government has passed and will be passing similar laws.

The difference is that in Britain the Home Secretary is required to draft the laws in a way that least impinges on the Human Rights Act.

Secondly the new law is then susceptible to real judicial review, and while the court can"t strike it out, an "incompatibility finding" requires it to be reconsidered by the legislature so as to make it compatible with the HRA.

All of this has the effect of putting the parliament and their constituents "on notice" that existing "rights" may be under threat, thereby concentrating everyone"s attention and most importantly permitting proper consideration of the vital issue of proportionality.

Finally, let me leave you with the opening lines of Mick Palmer"s report on the Cornelia Rau case:

"Protection of individual liberty is at the heart of Australian democracy. When there exists powers that have the capacity to interfere with individual liberty they should be accompanied by checks and balances sufficient to engender public confidence that those powers are being exercised with integrity."

Coming from a former federal Commissioner of Police, I think this elegant summation says it all.

Australia needs the addition of a Bill of Rights to ensure the correct weighting of Mick Palmer"s "checks and balances".

Ladies and Gentlemen, I leave you now with this challenge.