Review of Counter-Terrorism and National Security Legislation

Australian Human Rights Commission Submission to the Independant National Security Legislation Monitor

September 2012

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Table of contents

• 1 Introduction
• 2 Summary
• 3 Questioning warrants and questioning and detention warrants under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 (Cth)
  • 3.1 Legislative framework
  • 3.2 Risk of arbitrary detention
  • 3.3 Inadequate protection against self-incrimination
  • 3.4 Restrictions on access to legal advisers, and lack of effective review/remedy
• 4 Control orders and preventative detention orders under the Criminal Code Act 1995 (Cth)
  • 4.1 Legislative framework
  • 4.2 Risk of arbitrary detention and interference with other rights
  • 4.3 Lack of effective review/remedy

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1 Introduction

1. The Australian Human Rights Commission makes this submission to the
   Independent National Security Legislation Monitor (INSLM) in his Inquiry into
   Australia’s counter-terrorism and national security legislation.
2. Specifically, the Commission seeks to respond to the INSLM’s request
   for a submission concerning the powers relating to questioning warrants and
   questioning and detention warrants under the Australian Security Intelligence
   Organisation Act 1979 (Cth) (ASIO Act), and those relating to control orders
   and preventative detention orders under the Criminal Code Act 1995 (Cth).
   In doing so the Commission has had regard to the Issues for Consideration listed
   in Appendix 3 of the INSLM’s annual report of 16 December 2011, and the
   implications of, and for, the National Security Information (Criminal and
   Civil Proceedings) Act 2004 (Cth).

2 Summary

3. The Commission has previously considered the system of warrants provided for
   in Division 3 of Part III of the ASIO Act, and the control orders and
   preventative detention orders available under the Criminal Code Act 1995 (Cth), and has raised a number of concerns about aspects of these provisions in
   terms of their compatibility with Australia’s human rights
   obligations.^[1]
4. In summary, the key concerns which the Commission wishes to emphasise to the
   INSLM, in light of the Issues for Consideration to which the Commission was
   referred, are the following. The Commission considers that Division 3 of Part
   III of the ASIO Act, which provides for the use of questioning and questioning
   and detention warrants:
   • raises specific and general concerns regarding arbitrary detention, which is
     proscribed by article 9(1) of the International Covenant on Civil and
     Political Rights (ICCPR)^[2]
   • may not provide adequate protection against self-incrimination (as required
     by article 14(3) of the ICCPR), as Division 3 of Part III does not protect
     against ‘derivative use’ of material obtained through the warrant
     procedures
   • limits the legal advice or representation available to the subjects of the
     warrant procedures, which, in the Commission’s view, may leave people
     without an opportunity for judicial review and thus an ‘effective
     remedy’ for violations of their human rights, contrary to articles 2(3)
     and 9(4) of the ICCPR.
5. The Commission considers that Divisions 104 and 105 of Part 5.3 of the Criminal Code Act 1995 (Cth), which provide for the making of control
   orders and preventative detention orders respectively, also raise serious
   concerns, as:
   • preventative detention orders (and control orders, depending on the
     prohibitions and restrictions attached to such an order) may allow for arbitrary
     detention of individuals, contrary to article 9(1) of the ICCPR
   • the making of control orders may result in arbitrary interference with a
     number of other rights of those subjected to such orders, such as the right to
     privacy, and the rights to freedom of movement, expression, and association
     (articles 17, 12, 19 and 22 of the ICCPR respectively)
   • the ability of persons the subject of control orders or preventative
     detention orders to challenge the legality of their treatment and secure an
     effective remedy for any violation of their rights is limited by requirements
     that certain applications be heard ex parte, and restrictions on the
     disclosure of information concerning their treatment. This raises issues under
     articles 9(4) and 2(3) of the ICCPR.

3 Questioning warrants
and questioning and detention warrants under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 (Cth)

3.1 Legislative
framework

6. Division 3 of Part III enables ASIO to seek from an ‘issuing
   authority’ two types of special warrants:
   • a warrant which authorises the questioning of a person (a ‘questioning
     warrant’)
   • a warrant which authorises detention and questioning of a person (a
     ‘detention warrant’).
7. To obtain either type of warrant the Director-General of ASIO must first
   seek the consent of the Attorney-General to apply for such a warrant. The
   Attorney-General may consent to the Director applying for a questioning warrant
   if she or he is satisfied (inter alia):
   • that there are reasonable grounds for believing that issuing the warrant
     will substantially assist the collection of intelligence that is important in
     relation to a terrorism offence
   • that relying on other methods of collecting that intelligence would be
     ineffective.^[3]

8. If the Director seeks to obtain a detention warrant, the Attorney-General
   must also be satisfied before granting consent that there are reasonable grounds
   for believing that, if the person is not immediately taken into custody and
   detained, the person:
   • may alert a person involved in a terrorism offence that the offence is being
     investigated
   • may not appear before the prescribed authority, or
   • may destroy, damage or alter a record or thing the person may be requested
     to produce in accordance with the
     warrant.^[4]

9. Once the Attorney-General’s approval has been obtained, the Director
   may apply to an ‘issuing authority’. An issuing authority is either
   a federal magistrate or a judge (acting in their personal, rather than judicial,
   capacity).^[5]
10. The only criteria which the issuing authority must be satisfied have been
    met before issuing either type of warrant is that the Director-General has
    followed the relevant procedural requirements in requesting the warrant, and
    that there are reasonable grounds for believing that issuing the warrant will
    substantially assist the collection of intelligence that is important in
    relation to a terrorism
    offence.^[6]
11. A person who is the subject of a detention warrant must be brought
    immediately before a ‘prescribed authority’ for questioning.
    Questioning under a questioning warrant must also take place before a prescribed
    authority. These prescribed authorities are former members of the judiciary who
    are appointed by the
    Attorney-General.^[7]
12. Division 3 of Part III prescribes that a person may be detained for a
    maximum of seven days (168 hours),^[8] and questioned for a maximum period of 24
    hours.^[9] However, the prescribed
    authority must authorise ongoing questioning every eight
    hours.^[10] The total time for
    questioning increases to 48 hours if ‘an interpreter is present at any
    time while a person is questioned under a
    warrant’.^[11] In the case of a
    detention warrant, the prescribed authority must direct that the person be
    released from detention:
    • at the end of the 24 or 48 hour maximum period, or
    • at such a time as the authority refuses permission to continue questioning
      or revokes an earlier granted
      permission.^[12]

13. In the case of detention warrants, the person detained may not communicate
    with anyone while in custody or
    detention.^[13] This prohibition is
    subject to certain exceptions,^[14] including in relation to contact with lawyers.
14. Further secrecy is drawn over the process by s 34ZS of the ASIO Act, which
    provides that it is an offence, punishable by a maximum of five years’
    imprisonment, for a person to:
    • disclose the existence of a warrant and any fact relating to the content of
      a warrant or to the questioning or detention of a person under a warrant while
      it is in force (up to 28 days)
    • disclose any ASIO operational information acquired as a direct or indirect
      result of the issue of a warrant while it is in force and during the period of
      two years after the expiry of the warrant, unless the disclosure is permitted
      under another provision.

3.2 Risk of arbitrary
detention

15. A key concern of the Commission, which is pertinent to consideration of the
    questions raised by the INSLM in his list of Issues for Consideration, is the
    compatibility of the warrant powers in Division 3 of Part III with the
    prohibition on arbitrary detention contained in article 9(1) of the ICCPR.
    Article 9(1) provides that:

    Everyone has the right to liberty and
    security of person. No one shall be subjected to arbitrary arrest or detention.
    No one shall be deprived of his liberty except on such grounds and in accordance
    with such procedure as are established by law.

16. It should be noted that both questioning warrants and detention warrants may
    raise issues under article 9(1), as the effect of a questioning warrant on a
    person, in terms of restrictions on their freedom of movement and ability to
    contact others, may be such as to qualify as detention for the purposes of the
    ICCPR. The Human Rights Committee has observed that ‘detention’ is
    not to be narrowly understood, and that article 9 applies to all forms of
    detention or deprivations of liberty, whether they are criminal, civil,
    immigration, health or vagrancy
    related.^[15] The distinction between
    measures constituting ‘deprivation of’ as opposed to
    ‘restrictions upon’ liberty is one of degree or intensity, and not
    one of nature or substance. Nor does it depend in any way upon the labelling of
    something as ‘detention’. Rather, it will depend upon criteria such
    as the type, duration, effects and manner of implementation of the measure in
    question.^[16] In the
    Commission’s view, many questioning warrants will involve detention for
    the purposes of article 9(1) by reason of the following matters:
    • A person who is the subject of a questioning warrant will be required to
      attend a particular place (before the prescribed authority) or be guilty of an
      offence.^[17]
    • That person may be required to stay in that place for a period of up to 24
      hours (or more if an interpreter is required or further warrants are issued).
      Again, failure to do so may constitute an offence. In addition, a person seeking
      to leave a place where they were being questioned might be the subject of a
      ‘detention direction’ made by the prescribed
      authority.^[18]
    • That person will be exposed to onerous restrictions on their ability to
      communicate with third parties about certain matters.
    • That person will be subjected to intense scrutiny, including having their
      communications with their lawyer
      monitored.^[19]
17. In terms of when detention under either type of warrant will be held to be
    ‘arbitrary’, the Human Rights Committee has interpreted the term to
    include concepts of ‘inappropriateness, injustice and lack of
    predictability’,^[20] and has
    stressed that to be compatible with article 9(1) detention must meet the
    requirement of
    ‘proportionality’.^[21] In Australia the Full Federal Court in the matter of Minister for Immigration
    and Multicultural and Indigenous Affairs v Al Masri similarly concluded that
    ‘the text of Art 9... requires that arbitrariness is not to be equated
    with “against the law” but is to be interpreted more broadly, and so
    as to include a right not to be detained in circumstances which, in the
    individual case, are “unproportional” or
    unjust’.^[22]
18. Therefore in order for the detention of a person not to be considered
    arbitrary, his or her detention must not only be lawful, but also reasonable and
    necessary in all the
    circumstances.^[23] A lack of
    proportionality between a decision to detain a person and the aims sought to be
    achieved by the State can result in such detention violating article
    9(1).^[24]
19. In this context it is important to recognise the category of persons who may
    be subjected to detention pursuant to a questioning or detention warrant.
    Persons need not be charged with, or even suspected of, committing or planning
    to commit a terrorist (or other criminal) offence in order to be detained
    pursuant to one of the warrants in Division 3 of Part III. The only requirement
    is that, in the view of the Attorney-General and the issuing authority, the
    person is someone who may be able to ‘substantially assist in the
    collection of intelligence that is important in relation to a terrorism
    offence’. This very low threshold for detention of persons under Division
    3 of Part III necessarily increases the need for very strong reasons to justify
    such measures if they are to qualify as proportionate for the purposes of
    article 9(1).
20. In the view of the Commission, the need for proportionality in how the
    questioning and detention warrants in Division 3 of Part III are used is
    relevant to several of the Issues for Consideration listed by the INSLM in his
    annual report. Issues 7 and 14 to 17 all in some way relate to the questions of
    what should be the requirements before a questioning warrant or detention
    warrant can be issued, and who (that is whether the Attorney-General or the
    issuing authority) should be responsible for determining whether those
    requirements have been met.
21. The Commission submits that in order to avoid arbitrary detention of persons
    who have not been charged with any criminal offence, the provisions allowing for
    the issuance of a questioning or detention warrant should require an assessment
    by the issuing authority as to whether issuing the warrant is necessary and
    proportionate to the purpose of obtaining intelligence to avoid terrorist
    attacks, and/or that relying on other methods of collecting the intelligence
    would be ineffective. In relation to detention warrants, the issuing authority,
    in addition to the Attorney-General, should be required to be satisfied that
    there are reasonable grounds for believing that detention is required for one of
    the reasons set out in s 34F(4)(d) of the ASIO Act.
22. The issuing authority could also consider whether it would be more
    appropriate for the person the subject of an proposed questioning or detention
    warrant to be formally arrested (with the attendant procedural protections),
    thereby providing a check on the discretion of ASIO to choose not to proceed in
    this manner.
23. The Commission believes that requiring the issuing authority to consider
    whether the issuance of a questioning or detention warrant is in fact a
    necessary and/or proportionate measure to take in light of the available
    alternatives would strengthen the checks on the use of this extraordinary power
    by ASIO, and would help to avoid detention of individuals which is arbitrary and
    therefore contrary to article 9(1) of the ICCPR.
24. Another aspect of the detention powers available under Division 3 of Part
    III which raises questions about proportionality (and which is the subject of
    Issues 8 and 9) is the length of time for which a person can be detained. The
    Human Rights Committee has stated that even if a decision to detain someone can
    be considered a proportional response in light of a particular aim, ‘in
    order to avoid a characterization of arbitrariness, detention should not
    continue beyond the period for which the State party can provide appropriate
    justification’.^[25]
25. As mentioned above, pursuant to a warrant issued under Division 3 of Part
    III, a person can be detained for up to seven days (168 hours), for up to 24
    hours of questioning (or 48 hours if an interpreter is required at any point).
    This very long period of possible detention, combined with the very low
    threshold for detention, is of considerable concern to the Commission, as on its
    face it raises serious questions about proportionality.
26. Also of concern is the fact that the period of questioning (which is linked
    to the period of detention, because a person must be released from detention
    upon conclusion of the period allowed for
    questioning)^[26] doubles if
    ‘an interpreter is present at any time while a person is questioned
    under a warrant’ (emphasis
    added).^[27] This is irrespective of
    how long the interpreter is present, whether questioning has been conducted
    through them and whether their presence has facilitated or impeded the
    questioning process.
27. The Commission’s view is that the provisions regarding extensions of
    time where interpreters are involved should be amended so as to require the
    prescribed authority to form a view as to the effect the interpreter has had on
    the conduct of the particular proceedings. The prescribed authority should have
    the discretion to allow questioning to continue for a period considered to be
    sufficient to ameliorate any delay (subject to upper limits on the period by
    which questioning can be extended).

3.3 Inadequate
protection against self-incrimination

28. Under Division 3 of Part III of the ASIO Act, a person who is the subject of
    a questioning warrant or a detention warrant who either does not appear before
    the prescribed authority, or who fails to give any information or to produce any
    record or thing requested in the warrant, is subject to a penalty of five
    years’ imprisonment.^[28] The
    person is not entitled to refuse to give such information or produce such record
    on the ground that to do so would incriminate him or
    herself.^[29]
29. Section 34L does provide for ‘use immunity’, in that information
    obtained under a questioning or detention warrant is not admissible as evidence
    against the person in other criminal
    proceedings.^[30] This protects a
    person from the direct use of material gathered under a questioning or detention
    warrant. However, it does not protect against what is referred to as
    ‘derivative use’, meaning the use of that material to uncover other
    evidence, the latter of which can be used against the person in future criminal
    proceedings.^[31]
30. The omission of protection against derivative use potentially raises an
    issue under article 14(3) of the ICCPR, which provides that:

    In the
    determination of any criminal charge against him, everyone shall be entitled to
    the following minimum guarantees, in full equality...
    
    (g) Not to be compelled to testify against himself or to confess guilt.

31. The Human Rights Committee in a General Comment relating to article 14
    commented that the protection afforded by article 14 paragraph 3(g) should
    extend to prohibiting the admission of evidence provided by ‘any...form of
    compulsion’.^[32] This comment
    may be sufficiently wide to apply to derivative use of material provided under
    the ASIO Act. In the Commission’s view, the protection conferred by
    section 34L(9) should be widened to exclude such use.

3.4 Restrictions on
access to legal advisers, and lack of effective review/remedy

32. The Commission has concerns about the restrictions the ASIO Act places on
    the ability of a person the subject of a warrant under Division 3 of Part III to
    challenge the legality of their treatment, and to contact a lawyer for this
    purpose. This concern corresponds with Issue 20 in the INSLM’s annual
    report, and the question he raised in his letter to the Commission about the
    possibility of judicial review.
33. Section 34K(10) of the ASIO Act provides as a general rule that a person who
    has been taken into custody or detained under Division 3 is not permitted to
    contact, and may be prevented from contacting, anyone at any time while in
    custody or detention. This is subject to certain exceptions, including a right
    of access to the Inspector-General of Intelligence and Security and the
    Commonwealth Ombudsman.
34. A person subjected to a warrant under Division 3 of Part III has no
    guaranteed right to access a legal adviser. Rather, his or her right to contact
    a legal adviser and to legal representation during questioning is regulated by
    both the terms of the warrant and the prescribed authority in the exercise of
    its discretion.
35. A detention warrant must permit the person to contact a single lawyer of
    choice at any time while they are detained, but contact with the lawyer is not
    permitted until the person is brought before the prescribed authority and ASIO
    has had an opportunity to oppose access to the particular lawyer of
    choice.^[33]
36. No such provision is made in respect of questioning warrants. However, the
    prohibition on external communications does not apply to the subject of a
    questioning warrant, unless the prescribed authority orders the detention of
    that person under s 34K(1)(a). If such a direction is made, the prescribed
    authority may (but need not) make a direction allowing them to contact a
    lawyer.^[34]
37. The prescribed authority may prevent the subject of a detention warrant from
    contacting a lawyer if satisfied, on the basis of circumstances relating to that
    lawyer, that:
    • a person may be alerted to the fact a terrorism offence is being
      investigated
    • a record or thing that the person may be requested in connection with the
      warrant to produce may be destroyed, damaged or
      altered.^[35]

38. Further, the prescribed authority can tightly control the contact between a
    person being questioned and his or her legal adviser. It must provide a
    reasonable opportunity for the lawyer to advise the person detained during
    breaks in questioning,^[36] but
    contact between the lawyer and the person detained must be made in a way that
    can be monitored by a person exercising authority under the
    warrant.^[37] The lawyer may not
    interrupt the questioning of the person detained or address the prescribed
    authority before whom questioning is being conducted, except to request
    clarification of an ambiguous
    question.^[38] Indeed, the Act
    specifically provides that a person may be questioned in the absence of their
    lawyer.^[39] In addition, a lawyer
    may be removed from the location where questioning is taking place if the
    prescribed authority considers that he or she is ‘unduly interrupting
    questioning’.^[40] The person
    detained is then to be given the opportunity to contact a further lawyer of
    their choice.^[41]
39. Protection of a person’s right to have access to a legal adviser once
    subjected to a warrant under Division 3 of Part III is crucial, as it is a
    precondition to effective exercise of that person’s right to challenge the
    legality of his or her detention. This latter right is enshrined in article 9(4)
    of the ICCPR, which provides that:

    Anyone who is deprived of his
    liberty by arrest or detention shall be entitled to take proceedings before a
    court, in order that that court may decide without delay on the lawfulness of
    his detention and order his release if the detention is not lawful.

40. The procedural right conferred by article 9(4) is a specific manifestation
    of the overarching right to an ‘effective remedy’ for violations of
    the ICCPR, which is recognised by article
    2(3).^[42] Given the risk of persons
    being arbitrarily detained under Division 3 of Part III, discussed above, the
    right to an effective remedy becomes paramount.
41. The ASIO Act does not purport to oust the original jurisdiction of the High
    Court or Federal Court, and the prescribed authority is required to draw to the
    attention of a person who is the subject of a warrant that they may seek a
    relevant remedy from a federal
    court.^[43] However, such a process
    of review is unlikely to be a sufficient remedy, in terms of bringing the
    violation (that is the detention) to an end, given the time it would potentially
    take to approach a court for relevant relief.
42. Also, the prospects of a successful application to the Federal (or High)
    Court would be hampered by the restrictions which are, and can be, placed on a
    detained person’s contact with a legal adviser.
43. Further, access by the legal adviser to relevant information as to the
    reasons or basis for the person’s detention, which would be necessary in
    order to assess the legality of that detention, may be restricted by the
    provisions of the National Security Information (Criminal and Civil
    Proceedings) Act 2004 (Cth).
44. There would therefore be significant practical obstacles to a person
    detained pursuant to a warrant under Division 3 of Part III obtaining an
    effective remedy (through judicial review) if that detention was in fact
    arbitrary, and thus in violation of article 9(1) of the ICCPR.
45. There are a number of other concerns which the Commission has in relation to
    the compatibility of the warrants regime in Division 3 of Part III of the ASIO
    Act with Australia’s human rights obligations. For a full discussion of
    these concerns, please see the Commission’s Submission to the
    Parliamentary Joint Committee on ASIO, ASIS and DSD: Review of Division 3 Part
    III of the ASIO Act 1979 (Cth), available at: http://humanrights.gov.au/legal/submissions/asio_asis_dsd_review.html.

4 Control orders and
preventative detention orders under the Criminal Code Act 1995 (Cth)

4.1 Legislative
framework

46. Under Divisions 104 and 105 of Part 5.3 of Criminal Code Act 1995 (Cth), similarly to Division 3 of Part III of the
    ASIO Act, a person can be deprived of their liberty or have their movements
    restricted without that person having been convicted of or charged with a
    criminal offence. Rather, the focus of the measures is on preventing suspected
    future behaviour.

(a) Division 104:
control orders

47. Division 104 of Part 5.3 provides for the making of control orders. A
    control order is an order issued by a court (either the Federal Court, Family
    Court or Federal Magistrates Court), at the request of a member of the
    Australian Federal Police (AFP), to allow obligations, prohibitions and
    restrictions to be imposed on a person, for the purpose of protecting the public
    from a terrorist act.^[44]
48. These prohibitions or restrictions may prevent the person from:
    • being at specified areas or places
    • leaving Australia
    • communicating or associating with specific individuals
    • accessing or using specified types of telecommunications, including the
      internet
    • possessing or using specified articles or substances
    • carrying out specified activities (including in respect to their work or
      occupation).^[45]

49. Control order terms may also require the person to:
    • remain at specific premises at particular times of the day
    • wear a tracking device
    • report to specified persons at specified times and places
    • allow him or herself to be photographed and have fingerprint impressions
      taken
    • participate in specified counselling or education (only if they agree to do
      so).^[46]

50. A control order may only be sought with the prior permission of the
    Attorney-General,^[47] unless the AFP
    officer makes an application for an ‘urgent interim control
    order’,^[48] in which case the
    Attorney’s consent must be obtained no later than four hours after the
    request for the urgent order is
    made.^[49] However, no conditions
    are placed upon the giving of the Attorney’s consent to any type of
    control order.
51. If the Attorney consents, the AFP officer may seek an ‘interim control
    order’ from the Federal Court, Family Court or Federal Magistrates Court.
    The court may make such an order if it is satisfied, on the balance of
    probabilities that:
    • making the order would substantially assist in preventing a terrorist act;
      or
    • the person has provided training to, or received training from, a listed
      terrorist organisation; and (in either case)
    • 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.^[50]

52. Interim control orders are to be issued ex parte in all cases (i.e.
    in the absence of the person against whom the order is sought). However, the
    interim control order must specify a day, at the latest 72 hours after it was
    made, on which the person who is the subject of the order can attend court to
    challenge the making of the
    order.^[51] If the AFP wishes to
    confirm the control order, they must go back to court on that date and seek a
    confirmed order.
53. The person who is the subject of the interim control order must be given 48
    hours’ notice of the confirmation hearing, a copy of the interim control
    order (including a summary of the grounds on which it was
    made),^[52] and the documents given
    to the Attorney-General in order to obtain his or her consent to seek an interim
    control order.^[53]
54. However, the information provided to the person upon whom the interim
    control order has been imposed will not include any information which is
    considered to prejudice national security (within the meaning of the National
    Security Information (Criminal and Civil Proceedings) Act 2004) or
    jeopardise police
    operations.^[54]
55. The court will make a decision after hearing evidence from both parties. The
    court may declare an interim control order void, revoke it, or confirm it
    (including with variations). A confirmed control order can last up to 12 months,
    after which it can be
    renewed.^[55]

(b) Division 105:
preventative detention orders

56. Under Division 105 of Part 5.3, a preventative detention order (PDO) enables
    a person to be taken into custody and detained by the AFP, initially for a
    period of up to 24 hours.^[56] Upon
    application to an ‘issuing authority’, this period can be extended,
    but the total period of detention cannot exceed 48
    hours.^[57]
57. There are two distinct bases for the making of a
    PDO.^[58] The first relates to the
    prevention of a terrorist act. To utilise that head, the issuing authority must
    be satisfied that there are reasonable grounds to suspect that the subject:
    • will engage in a terrorist act, or
    • possesses a thing that is connected with the preparation for, or the
      engagement of a person in, a terrorist act, or
    • has done, or will do, an act in preparation for, or planning, a terrorist
      act.^[59]

58. The issuing authority must also be satisfied that making the order would
    substantially assist in preventing a terrorist act occurring, and that detaining
    the subject for the period for which the person is to be detained under the
    order is reasonably necessary for this
    purpose.^[60] The ‘terrorist
    act’ in question must be ‘imminent’, and in any event be
    expected to occur within 14
    days.^[61]
59. The second head for the making of a PDO relates to the protection of
    evidence. To utilise that head, the issuing authority must be satisfied that:
    • a terrorist act has occurred within the last 28 days
    • it is necessary to detain the subject to preserve evidence of, or relating
      to, the terrorist act, and
    • detaining the subject for the period for which the person is to be detained
      under the order is reasonably necessary in order to achieve the above
      purpose.^[62]

60. There are two stages of PDOs, each of which involve different ‘issuing
    authorities’:
    • initial preventative detention orders which last 24 hours, and can be issued
      by senior members of the AFP;^[63] and
    • continued preventative detention orders and extensions of continued
      preventative detention orders, which extend the time in detention to a maximum
      of 48 hours,^[64] and which can be
      issued by a judge, federal magistrate, tribunal member or retired judge (these
      persons are appointed by the Attorney-General and act in a personal
      capacity).^[65]
61. In respect of both forms of PDOs, the individual has no right to appear
    personally or through legal representation so as to challenge the issuing of the
    order.
62. The person who is detained is required to be given certain information. That
    includes a copy of the initial PDO and a ‘summary of the grounds’
    upon which it was made.^[66] It is
    specifically provided that information is not to be included in that summary if
    it is ‘likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth))’.^[67]
63. If a PDO is made in relation to a person, the AFP must nominate a senior AFP
    member, not involved in the making of the application for the order, to oversee
    the exercise of power under, and the performance of obligations pursuant to the
    order.^[68] The nominated officer
    must ‘consider’ representations made by the person who is being
    detained and/or his or her
    lawyer.^[69]
64. A person detained pursuant to a PDO is entitled to contact a lawyer to
    arrange for the lawyer to act for them to seek a remedy relating to the PDO or
    their treatment whilst detained, but this contact is strictly
    regulated.^[70]
65. Restrictions are also placed upon a detained person’s capacity to
    contact other people. With limited exceptions for family members, lawyers, the
    Commonwealth Ombudsman and parents/guardians, a person is not entitled to
    contact another person and may be prevented from doing
    so.^[71] Disclosure outside these
    exceptions is subject to criminal
    sanctions.^[72]
66. Further, the AFP may seek a ‘prohibited contact order’ when
    applying for a PDO or in relation to a PDO which is already in
    force.^[73] Such an order provides
    that the person detained under a preventative detention order is not to contact
    certain persons.^[74] The AFP is not
    required to inform the detainee that a prohibited contact order has been made in
    relation to the person’s detention, or the name of a person specified in
    the prohibited contact
    order.^[75]

4.2 Risk of arbitrary
detention and interference with other rights

67. As with the questioning and detention warrants under the ASIO Act, a key
    concern of the Commission with regard to the PDOs available under Division 105
    of Part 5.3 of the Criminal Code Act 1995 (Cth) is that they allow for
    arbitrary detention, in violation of article 9(1) of the ICCPR. As discussed
    above, in order for detention not to be arbitrary it must fulfil the requirement
    of proportionality, in light of the aims sought to be achieved by such
    detention.
68. Before issuing a PDO the issuing authority must be satisfied that detaining
    the subject for the relevant period is ‘reasonably necessary’ for
    the purpose of preventing a terrorist attack or preserving evidence of such an
    attack. This scrutiny of the necessity of the order means that proportionality
    is being considered to some extent before such an order is made.
69. However, the Commission considers that a more stringent proportionality test
    would appropriately reflect the fact that PDOs are exceptional orders and should
    only be made in exceptional circumstances. It is also relevant to observe that
    the other conditions for the making of PDOs may be relatively easily satisfied
    (particularly those which relate to an imminent terrorist threat, where the
    powers are only otherwise conditioned upon a ‘reasonable suspicion’
    and satisfaction that the making of an order will ‘substantially
    assist’ in the prevention of a terrorist act).
70. In relation to control orders, it is evident from the types of prohibitions
    and restrictions which can be placed upon a person that these orders potentially
    infringe upon a number of human rights, including:
    • the right to liberty (article 9(1) of the ICCPR)
    • the right to freedom of movement (article 12 of the ICCPR)
    • the right to privacy (article 17 of the ICCPR)
    • the right to freedom of expression (article 19 of the ICCPR)
    • the right to freedom of association (article 22 of the
      ICCPR)
    • the right to work (article 7 of the International Covenant on Economic,
      Social and Cultural
      Rights^[76]).

71. As noted above, the right to liberty is not absolute – a person may be
    deprived of that right subject to certain conditions, the most notable of which
    is that the deprivation meets the test of proportionality in all the
    circumstances. The same may generally be said of the other human rights
    potentially infringed by the restrictions available under control orders.
72. It is the case that before an issuing court can make an interim control
    order, it must be satisfied that every one of the obligations, prohibitions and
    restrictions to be imposed on the person is reasonably necessary, and reasonably
    appropriate and adapted, for the purpose of protecting the public from a
    terrorist act. However, the Commission considers that, as with PDOs, given the
    extraordinary nature of a control order, a stricter test of proportionality
    would be appropriate.
73. The Commission suggests that, in relation to both PDOs and control orders,
    the issuing authority or issuing court should be required to be satisfied that
    detaining the person (in the case of PDOs) or imposing each of the obligations,
    prohibitions and restrictions (in the case of control orders) is the least
    restrictive way of achieving the purpose for which the order is
    sought.

4.3 Lack of effective
review/remedy

74. As with the provisions in Division 3 of Part III of the ASIO Act, the
    Commission has concerns about the restricted ability of persons the subject of
    control orders or PDOs to have the legality of their treatment effectively (and
    impartially) reviewed and remedied, as they are entitled to under articles 9(4)
    and 2(3) of the ICCPR.

(a) Review of PDOs

75. The Human Rights Committee has explicitly stated that article 9 of the ICCPR
    requires that adequate safeguards be put in place if any system of
    ‘preventative’ detention is used by a State party in relation to
    persons not charged with any criminal offence. In General Comment 8 the
    Committee commented:

    [I]f so-called preventative detention is used,
    for reasons of public security, it ... must not be arbitrary, and must be based
    on grounds and procedures established by law (para. 1), information of the
    reasons must be given (para. 2) and court control of the detention must be
    available (para. 4).^[77]

76. Division 105 provides that the ongoing need for a PDO will potentially be
    reviewed on a number of occasions (that is, each time an extension is sought,
    when a continuing PDO is sought and in any application for revocation). However,
    the detained person (or their lawyer) has no right to appear before the issuing
    authority on those occasions; these applications are decided ex parte.
    They are able to make representations to the nominated AFP officer – but
    that person is under no obligation to draw those matters to the attention of the
    issuing authority. The nominated AFP officer must merely ‘consider’
    any such representations.
77. Section 105.51 provides that generally a person may bring legal proceedings
    in a court in order to obtain a remedy in relation to a PDO or the treatment of
    a person in connection with that person’s detention under a
    PDO.^[78] However, applications for
    judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) are excluded,^[79] as is the jurisdiction of State and Territory
    courts.^[80]
78. Further, while s 105.51(5) does allow for an application to the
    Administrative Appeals Tribunal for a review of the merits of the decision to
    make a PDO, it also provides that such an application cannot be made while the
    PDO is in force, which essentially confines the remedy which the AAT can award
    to compensation after the fact.
79. That leaves judicial review in the Federal Court under s 39B of the Judiciary Act 1903 (Cth) or in the High Court under s 75(v) of the Constitution. However these processes do not allow for an investigation
    of the facts or of the reasonableness and proportionality of the detention.
80. Consequently, it is questionable whether s 105.51 provides the right to
    review required by article 9(4) of the ICCPR.
81. Even if a person the subject of a PDO can get an application for review of
    the order before a court, there would be practical obstacles in terms of the
    restrictions on the information which would be made available to the applicant
    about his or her detention.
82. As noted above, Division 105 only requires that the detained person be given
    a copy of the initial PDO, the continuing PDO and any extensions and a
    ‘summary’ of the grounds for the making of the initial PDO. No
    content is prescribed for the summary. This means that the material could be
    entirely general in nature.
83. The summary also will not include any information which is ‘likely to
    prejudice national security’ within the meaning of the National
    Security Information (Criminal and Civil Proceedings) Act 2004 (Cth). As the
    Commission has noted in earlier hearings before the
    Committee,^[81] ‘national
    security’ has a very broad definition under that Act.
84. A detained person may be able to obtain access to a wider range of
    documentary information through the court’s compulsory processes after
    commencing a judicial review application in a federal court. However, there are
    a number of difficulties with this. First, the court would only compel
    production of documents relevant to a matter in issue. As noted above, judicial
    review is a narrow, technical process and this will limit the scope of any
    documents required to be produced. In addition, the Attorney could potentially
    invoke the National Security Information (Criminal and Civil Proceedings) Act
    2004 (Cth) and seek to have the court make non-disclosure orders and orders
    allowing the use of redacted
    evidence.^[82]
85. Accordingly, the Commission has concerns as to whether the provisions of
    Division 105 are compatible with articles 9(4) and 2(3) of the ICCPR, in that
    they do not appear to allow for an effective review and/or remedy in the event
    that a person is detained pursuant to a PDO in violation of article 9(1).

(b) Review of control
orders

86. As noted above, both interim control orders and urgent interim control
    orders may be made ex parte. The person the subject of those orders has
    no right to appear before the court. Nor does Division 104 impose any
    requirement upon the AFP or the court to consider whether the circumstances of
    the case are such that the person may be given such an opportunity without
    endangering national security.
87. Division 104 does provide for an inter partes hearing after the
    interim control order has been served. It specifically states that the subject
    of the control order and their legal representative may make submissions and
    adduce evidence at that hearing.^[83] After considering the material before it, the court is empowered to revoke the
    order, or declare it void.
88. The Division also allows the subject of a control order to bring an
    application for revocation or variation of the order, provided they have given
    written notice of the application and the grounds upon which revocation is
    sought to the Commissioner of the
    AFP.^[84]
89. However, as with the regime provided for PDOs under Division 105, a
    difficulty with the review of control orders under Division 104 is that of
    access to information. Division 104 adopts a similar approach to that discussed
    above in relation to PDOs under Division 105 – that is, a person must be
    served with a copy of the control order, including a ‘summary’ of
    the grounds upon which it was made, as well as ‘any other details required
    to enable the person to understand and respond to the substance of the facts,
    matters and circumstances which will form the basis of the confirmation of the
    order’.^[85] However, again,
    the AFP need not include any information considered likely to prejudice national
    security within the meaning of the National Security Information (Criminal
    and Civil Proceedings) Act 2004 (Cth).^[86]
90. A number of consequences follow from this. Firstly, a person subject to a
    control order may find it difficult or impossible to comply with the requirement
    that a revocation or variation application be preceded by written notice to the
    AFP Commissioner of the grounds upon which revocation or variation is
    sought.
91. Secondly, the issuing court would presumably be able to rely upon the usual
    range of compulsory powers to require the AFP to produce relevant documentary
    material at a confirmation, revocation or variation hearing. However, this will
    inevitably result in delays, during which time a person may be effectively
    subjected to a form of detention (if the order includes a requirement that the
    person remain at specified premises between specified times each day, or on
    specified days). The current approach in Division 104 therefore increases the
    likelihood that a person may be subject to arbitrary detention or violation of
    one of the other human rights referred to above for a longer period of
    time.
92. Even if a court does compel production of relevant material, the
    Attorney-General could invoke the National Security Information (Criminal and
    Civil Proceedings) Act 2004 (Cth). As noted above, the use of that procedure
    may result in information being withheld (through orders for redaction or
    non-disclosure). It will also delay any determination as to whether the control
    order should be revoked or varied. Again, this raises the possibility of delay
    in correcting mistaken exercises of power and thus bringing an end to the
    violations of the human rights of people who should not be subjected to control
    orders.
93. The Commission therefore has strong concerns about the lack of an effective
    review mechanism for control orders, which could provide a remedy for any
    potential violations of the wide range of rights which could be impacted by such
    an order, depending on the particular restrictions and prohibitions which are
    attached to it.
94. There are a number of other concerns which the Commission has in relation to
    the compatibility of the control orders and PDOs in Part 5.3 of the Criminal
    Code Act 1995 (Cth) with Australia’s international human rights
    obligations. For a full discussion of these concerns, please see the
    Commission’s Submission to the Senate Legal and Constitutional
    Legislation Committee inquiry into the Anti-Terrorism Bill (No 2) 2005,
    dated 11 November 2005, available at: http://humanrights.gov.au/legal/submissions/terrorism_sub_12-11-2005.html.

---

^[1] See the following submission
made by the Commission, all of which are available at http://humanrights.gov.au/human_rights/counter_terrorism/index.html: Submission to the Parliamentary Joint Committee on ASIO, ASIS and DSD (May 2002); Submission to the Parliamentary Joint Committee on ASIO, ASIS and DSD: Review
of Division 3 Part III of the ASIO Act 1979 (Cth), Submission to the Senate Legal and Constitutional Legislation Committee, Inquiry into the
Anti-Terrorism Bill (No 2) 2005 (November 2005). See also the Background
Paper prepared by the Commission on human rights concerns raised by
Australia’s counter-terrorism laws, A Human Rights
Guide to Australia’s Counter-Terrorism Laws (2008), available at http://humanrights.gov.au/legal/publications/counter_terrorism_laws.html.

^[2] Opened for signature 16
December 1966, 999 United Nations Treaty Series 171; entered into force 23 March
1976 except article 41 which came into force 28 March 1979; ratified by
Australia 13 August 1980 except article 41 which was ratified by Australia 28
January 1993.

^[3] Australian
Security Intelligence Organisation Act 1979 (Cth) s
34D(4).

^[4] Australian Security
Intelligence Organisation Act 1979 (Cth) s
34F(4)

^[5] See Grollo v
Palmer (1995) 184 CLR 348.

^[6] Australian Security Intelligence Organisation Act 1979 (Cth) ss 34E(1)
and 34G(1).

^[7] Australian
Security Intelligence Organisation Act 1979 (Cth) s
34B.

^[8] Australian Security
Intelligence Organisation Act 1979 (Cth) s
34S.

^[9] Australian Security
Intelligence Organisation Act 1979 (Cth) s
34R(6).

^[10] Australian
Security Intelligence Organisation Act 1979 (Cth) s
34R.

^[11] Australian Security
Intelligence Organisation Act 1979 (Cth) s 34R(8) to
(12).

^[12] Australian Security
Intelligence Organisation Act 1979 (Cth) s
34R(7).

^[13] Australian
Security Intelligence Organisation Act 1979 (Cth) s
34K(10).

^[14] Australian
Security Intelligence Organisation Act 1979 (Cth) s
34K(11).

^[15] United Nations
Human Rights Committee, General Comment No 8: Right to liberty and security
of persons (Art. 9) (1982),
[1].

^[16] See, in the context of
the European Convention on Human Rights, Amuur v France (1992) 22
EHRR 533, [42].

^[17] Australian Security Intelligence Organisation Act 1979 (Cth) s
34L(1).

^[18] Australian
Security Intelligence Organisation Act 1979 (Cth) s 34K(1) and
(4).

^[19] Australian Security
Intelligence Organisation Act 1979 (Cth) s
34ZQ(2).

^[20] United Nations
Human Rights Committee, Van Alphen v Netherlands, Communication No. 305/1988, views adopted 23 July 1990
[5.8].

^[21] See e.g. United
Nations Human Rights Committee, A v Australia, Communication No.
560/1993, views adopted 3 April 1997, [9.2]. See also Manfred Nowak, UN
Covenant on Civil and Political Rights - CCPR Commentary NP Engel (1993) p
172.

^[22] (2003) 126 FCR 54 at
[152].

^[23] United Nations Human
Rights Committee, Van Alphen v Netherlands, Communication No. 305/1988,
views adopted 23 July 1990,
[5.8].

^[24] United Nations Human
Rights Committee, A v Australia, Communication No. 560/1993, views
adopted 3 April 1997, [9.2].

^[25] United Nations Human Rights Committee, C v Australia, Communication No.
900/1999, views adopted 28 October 2002,
[8.2].

^[26] Australian
Security Intelligence Organisation Act 1979 (Cth) s
34R(7).

^[27] Australian
Security Intelligence Organisation Act 1979 (Cth) s
34R(8).

^[28] Australian
Security Intelligence Organisation Act 1979 (Cth) s 34L(1),(2) and
(6).

^[29] Australian Security
Intelligence Organisation Act 1979 (Cth)
s34L(8).

^[30] Australian
Security Intelligence Organisation Act 1979 (Cth)
s34L(9).

^[31] See Senate Legal
and Constitutional References Committee, Australian Security Intelligence
Organisation Legislation Amendment (Terrorism) Bill 2002 and related
matters, December 2002, at
61-64.

^[32] United Nations Human
Rights Committee, General Comment No. 13: Equality before the courts and the
right to a fair and public hearing by an independent court established by law
(Art. 14) (1984), [14].

^[33] Australian Security Intelligence Organisation Act 1979 (Cth) s
35F(5)

^[34] Australian
Security Intelligence Organisation Act 1979 (Cth) s
34K(1)(d).

^[35] Australian
Security Intelligence Organisation Act 1979 (Cth) s
34ZO.

^[36] Australian Security
Intelligence Organisation Act 1979 (Cth) s
34ZQ(5).

^[37] Australian
Security Intelligence Organisation Act 1979 (Cth) s
34ZQ(2).

^[38] Australian
Security Intelligence Organisation Act 1979 (Cth) s
34ZQ(6).

^[39] Australian
Security Intelligence Organisation Act 1979 (Cth) s
34ZP.

^[40] Australian Security
Intelligence Organisation Act 1979 (Cth) s
34ZQ(9).

^[41] Australian
Security Intelligence Organisation Act 1979 (Cth) s
34ZQ(10).

^[42] See e.g. United
Nations Human Rights Committee, Massiotti and Baritussio v Uruguay, Communication No 25/1978, views adopted 26 July 1982,
[13].

^[43] Australian Security
Intelligence Organisation Act 1979 (Cth) s
34J(1)(f).

^[44] Criminal Code
Act 1995 (Cth) s 104.1.

^[45] See Criminal Code Act 1995 (Cth) ss 104.5(3) and
104.16(1)(c).

^[46] Criminal
Code Act 1995 (Cth) ss 104.5(3) and
104.16(1)(c).

^[47] Criminal
Code Act 1995 (Cth) s
104.2.

^[48] Criminal Code Act
1995 (Cth) s 104.6(2)

^[49] Criminal Code Act 1995 (Cth) s
104.10.

^[50] Criminal Code Act
1995 (Cth) s104.4(i)(c)
and(d).

^[51] Criminal Code Act
1995 (Cth) s 104.5(1)(e) and
(1A).

^[52] Criminal Code Act
1995 (Cth) s
104.5(1)(h).

^[53] Criminal
Code Act 1995 (Cth) ss 104.12 and
104.12A

^[54] Criminal Code Act
1995 (Cth) s 104.12A(3).

^[55] Criminal Code Act 1995 (Cth) s
104.16.

^[56] Criminal Code Act
1995 (Cth) s 105.8

^[57] Criminal Code Act 1995 (Cth) s 105.12.

^[58] Criminal Code Act 1995 (Cth) s 105.1.

^[59] Criminal Code Act 1995 (Cth) s
105.4(4)(a).

^[60] Criminal
Code Act 1995 (Cth) s 105.4(4)(b) and
(c).

^[61] Criminal Code Act
1995 (Cth) s 105.4(5).

^[62] Criminal Code Act 1995 (Cth) s
105.5(6).

^[63] Criminal Code
Act 1995 (Cth) s
105.5(8).

^[64] Criminal Code
Act 1995 (Cth) s
105.14(6).

^[65] Criminal Code
Act 1995 (Cth) ss 105.2 and
105.18(2).

^[66] Criminal Code
Act 1995 (Cth) ss 105.8(6)(e), 105.12(6)(d) and 105.32(1) and
(4).

^[67] Criminal Code Act
1995 (Cth) s 105.8(6A)

^[68] Criminal Code Act 1995 (Cth) s 105.19(5) and
(6).

^[69] Criminal Code Act
1995 (Cth) s 105.19(7)(c) and
(8).

^[70] Criminal Code Act
1995 (Cth) s 105.37.

^[71] Criminal Code Act 1995 (Cth) s
105.34.

^[72] Criminal Code Act
1995 (Cth) s 105.41(1).

^[73] Criminal Code Act 1995 (Cth) s
105.15.

^[74] Criminal Code Act
1995 (Cth) s 105.15(4).

^[75] Criminal Code Act 1995 (Cth) s
105.28(3).

^[76] Opened for
signature, 16 December 1966, 993 United Nations Treaty Series 3; entered into
force 3 January 1976; ratified by Australia 10 December
1975.

^[77] United Nations Human
Rights Committee, General Comment No 8: Right to liberty and security of
persons (Art. 9) (1982)
[4].

^[78] Criminal Code Act
1995 (Cth) s 105.51(1).

^[79] Criminal Code Act 1995 (Cth) s 105.51(4) and Administrative Decisions
(Judicial Review) Act 1977 (Cth) sch 1
(dac).

^[80] Criminal Code Act
1995 (Cth) s 105.51(2).

^[81] Official Committee Hansard, Senate Legal and Constitutional Committee,
Parliament of Australia, Canberra, 13 April 2005, 37 (Craig
Lenehan).

^[82] See Part 3,
Divisions 2 and 3 of the
Act.

^[83] Criminal Code Act
1995 (Cth) s 104.14(1).

^[84] Criminal Code Act 1995 (Cth) s
104.18.

^[85] Criminal Code Act 1995 (Cth)104.12A(2).

^[86] Criminal Code Act 1995 (Cth)104.12A(3).