Spencer Zifcak. Counter-Terrorism and Human Rights.

May 28, 2015

Fairness, Opportunity and Security.
Policy series edited by Michael Keating and John Menadue.

Do Human Rights Fit or Should We Just Forget About Them?

Hard upon the ascent of violent terrorism in the Middle East, Africa and elsewhere, and Australia’s first experience of terrorist crime in Martin Place, the Australian Government has been active in bringing forward new legislation designed to prevent and punish terrorist crime. There can be no quarrel with that. Nevertheless, the draconian nature of the new laws has caused alarm amongst many concerned with the protection of individual rights and freedoms.

One of the most pressing questions in contemporary Australian politics, therefore, has become how best to reconcile the interests of national security, on the one hand, and the protection of fundamental human rights and freedoms, on the other. In this article I consider critically the three large tranches of counter-terrorism legislation recently adopted by Federal Parliament. Then I look to the question of how human rights considerations might constructively be incorporated into existing debate and deliberation upon counter-terrorism law. 

  1. The National Security Amendment Act 

The first of the three tranches of recent counter-terrorism legislation is contained in the National Security Legislation Amendment Act (No.1). The legislation amended several existing Acts to strengthen the powers of Australia’s intelligence agencies. It gives ASIO officers immunity from prosecution for criminal activity in which they may engage in the course of ‘special intelligence operations.’ It creates new offences and severe penalties for the disclosure of information that relates to these operations.

The Act defines a ‘special intelligence operation’ as one established to carry out special intelligence functions in the course of which an ASIO officer or affiliate may engage in criminal conduct or commit a civil wrong. A special intelligence function is one carried out for the purpose of obtaining evidence that may lead to a prosecution for a serious Commonwealth offence. That means, for example, that if during the course of a special intelligence operation an ASIO officer beats up an innocent party or recklessly causes them harm, s(he) will be immune from criminal prosecution.

Nevertheless, special intelligence operations are subject to legal limitations. An operation, tautologically, must be one that will assist ASIO in the performance of a special intelligence function. The unlawful conduct involved in undertaking an operation must be limited to the maximum extent consistent with conducting an operation effectively. The conduct involved must not cause death or serious injury to any person; involve a sexual assault; or result in serious damage to property.

Even this brief description makes it plain that the special intelligence operation provisions travel far more widely than is consistent with the rule of law. It is unacceptable in principle and practice that ASIO officers should be immune from prosecution for crimes they commit. This violates the fundamental constitutional principle that every person should be treated equally before the law.

The essential point remains that ASIO operatives should not be exempted from the law. In the 1984 case of A v Hayden, former Chief Justice of the High Court, Sir Anthony Mason put the point succinctly:

“For the future, the point needs to be made loudly and clearly, that if counter-espionage activities involve breaches of the law they are liable to attract the consequences that ordinarily flow from breaches of the law”. 

The National Security Amendment Act (No.1) prohibits the disclosure by any person of information that relates to a special intelligence operation. S.35P is as follows.

            35P. Unauthorized disclosure of information

  • A person commits and offence if:
    1. The person discloses information; and
    2. The information relates to a special intelligence operation.
      Penalty: Imprisonment for 5 years.

This provision could slam the door on investigative journalism. Press freedom exists in part to ensure that government agencies can be held to account for their actions. The accountability principle applies to intelligence organizations no less than to any other entity in the machinery of government. S.35P is a concerted attempt to undermine it.

Journalists and whistle-blowers often work in tandem to obtain and expose information about governmental corruption and malfeasance. This activity is clearly in the public interest. Journalists cultivate knowledgeable and expert sources all the time. They promise sources that their identity will not be revealed. They receive and evaluate confidential information. For the most part, they are careful when publishing information concerning surveillance operations, particularly when they relate to the protection of national security.

S.35P, however, is likely to chill these crucial investigative activities. Journalists, lawyers and others who come into possession of specialist intelligence information may be prosecuted not only when they intend to disclose that information but also if they are reckless as to the possibility of its disclosure. All the government now needs to do to stop such disclosures is to warn media organizations that matters in which journalists have an interest may relate to special intelligence operations. Journalists are unlikely to court the possibility of jail once such a caution has been issued. S.35P should be repealed in its entirety.

  1. The Foreign Fighters Act 

The second tranche of counter-terrorism legislation is contained in the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act. The primary purpose of this legislation is to enable the investigation, arrest, prosecution and punishment of people supporting foreign conflicts. The secondary purpose is to limit the opportunities of Australian residents to engage in foreign fighting and domestic support for foreign fighters. Speaking generally, there is no problem with criminalizing such activities. The problematical issues are different.

Each of the foreign incursion offences pivots upon the definition of ‘to engage in hostile activity’. A person engages in hostile activity in a foreign country if they engage in conduct intending to overthrow the government of the country or to subvert society or intimidate the public in that country. This definition substantially expands the one formerly contained in the Crimes (Foreign Incursions) Act 1978. The expansion is achieved by the inclusion of the subversion and intimidation components.

‘Subverting society’ is defined extraordinarily widely. It may for instance apply to serious damage to any property, serious interference with an information system or a serious disruption to transport infrastructure. Such activities may legitimately be criminalized but to attach a life sentence to them is manifestly excessive. Importantly, too, the new subversion offences are not tied directly to terrorism. Subversive activity encompasses a range of actions that, unlike terrorist acts, need neither be intended to influence a government by intimidation nor be motivated by the advancement of a political, ideological or religious cause. To avoid substantial legal over-reach, these offences should be tied directly to the far narrower definition of a terrorist act contained in the Commonwealth Criminal Code. 

The problems attached to overly broad ministerial discretion are illustrated graphically by new offences attached to travelling to ‘no go zones’. Pursuant to the Foreign Fighters law, it is an offence for a person to enter an area in a foreign country that has been declared by the Minister for Foreign Affairs as a no-go zone, where the Minister is satisfied that a listed terrorist organization is operating there. To enter or remain in a declared area attracts a penalty of 10 years imprisonment.

The scope of the legislation is wide. It means that a person will be liable to prosecution for crossing an artificial geographical line, determined at the Minister’s discretion and drawn, in any part of the world, according to the Minister’s judgment as to the nature, extent and national security implications of a civil conflict occurring there.

The exceptions are narrow. They include cases in which a person has entered an area to engage in humanitarian or journalistic activities or for bona fide family reasons. They do not, however, cover business travellers, pilgrims, adventurers, ill informed tourists, people who enter inadvertently, people in transit, others who have gone to visit or support friends and so on.

The exception for journalists extends only to those who are working in a professional capacity. Social media correspondents, bloggers, researchers, independent cameramen and others are unlikely to fall into the professional category. The parliament should include, therefore, a general defence for a person who has travelled to the area for an innocent purpose that nevertheless falls outside the present narrowly defined, legitimate reasons for travel.

  1. The ‘Metadata’ Act

The third tranche of counter-terrorism legislation is the Telecommunications (Interception and Access) Amendment (Data Retention) Act, better known as the ‘metadata’ law. Pursuant to this law, telecommunication service providers are required to keep telecommunications data of various kinds for a period of two years. The data to be kept includes the name and address of service subscribers; contact information; payment information; identifiers of the account from which, and to which, a communication has been sent; the date and time of the every communication; and the types of communication and service utlilised. Access to the content of communications, however, is excluded.

A dizzying array of law enforcement agencies may request the information to which service providers must provide access. Fifteen classes of agency are so authorized. These include the AFP; State Police Forces; ASIC; the ACCC; and all State Anti-Corruption Commissions. With one significant exception, a judicial warrant is not required before a demand for metadata relating to a person is made.

The exception is for journalists. In considering whether to approve the issue of a journalist information warrant, the Minister must be satisfied that the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of a journalistic source. In determining the balance to be struck between these competing public interests the Minister must also have regard to the extent to which the privacy of any person may be interfered with.

The problems with metadata legislation of this kind are self-evident. While the content of communications may not be accessed, metadata itself can provide a detailed picture of a person’s private life. Law enforcement agencies can with alacrity paint a person’s individual portrait from their phone calls, email, online chat, credit card purchases, web searches, identified associates, and physical location. The sophisticated new technology underpinning access to metadata can also allow enforcement agencies to engage in sweeping surveillance of entire communities.

All this might be justifiable if strong protections against arbitrary invasions of privacy were also embedded in law. But they aren’t. The cardinal error is the absence of a legislative requirement for enforcement agencies to obtain an access warrant, the justification for which is independently and impartially assessed by the judiciary whenever metadata is sought.

According Weight to Human Rights Considerations 

Unlike every other Western democracy, Australia does not have a constitutional or statutory Charter of Rights. In the present context, the lack of comprehensive legal protection for Australians’ rights and freedoms has two undesirable effects. The first is that there is no legal mechanism through which Australian governments can be encouraged or obliged to comply with international human rights law. This is despite the fact that Australia has ratified, and therefore has agreed to observe the terms of, every major international human rights treaty.

The International Covenant on Civil and Political Rights (ICCPR), for example, protects freedom of expression, freedom of movement and individual privacy. It is founded upon a commitment to the rule of law. Each of these rights is likely to be transgressed as the legislation previously described takes effect.

Freedom of expression is constrained whenever media freedom is undermined. The National Security Amendment Act will silence journalistic investigation with respect to special intelligence operations, while allowing security agencies to define such operations broadly. The Telecommunications Interception Act authorizes sweeping access to journalists’ metadata while providing only flimsy protection against the identification and surveillance of their sources. Furthermore, it will inevitably act as a prohibitory disincentive to sources who might otherwise seek to expose public and private corruption and malfeasance.

Privacy rights are frighteningly compromised by the metadata laws. Even in the absence of access to content, security agencies will now be able to create intimate portraits of surveilled individuals without their knowledge, without prior reasonable suspicion that an offence has been committed and without any restrictions on how the data will be analyzed and used. A criminal prosecution founded upon such secretly acquired metadata may prejudice the right to fair trial and, hence, the rule of law. The rule of law is further undermined by exempting ASIO officers from criminal prosecution when they engage in special intelligence operations.

The absence of a Charter of Rights has another profoundly detrimental effect. It impoverishes public discussion and debate about controversial legislation such as that recently enacted. A Human Rights Act of the kind proposed by the National Consultation on Human Rights in 2009, but shelved by the Rudd Government, would have added two significant dimensions to public and political deliberation concerning counter-terrorism laws.

First, once made law, the Act would have provided a clear set of internationally endorsed human rights criteria on the basis of which a more informed and considered judgment could have been made as to the desirability or otherwise of the three tranches of legislation recently adopted.

Secondly, a Human Rights Act could be a formidable legal instrument through which the Australian community generally could through time be educated concerning the fundamentals of Australian democracy – representative and responsible government, the separation of judicial power, the rule of law, freedom of expression, non-discrimination and the ethical foundation and practical relevance of human rights themselves. Study after Australian study has demonstrated the barrenness and failures of contemporary civics education. A Charter of Rights could provide one model set of non-partisan standards to which all Australians could look in making sense of their political world and in framing their aspirations for it.


All too often the terrorism debate is framed in terms of trade-offs. The trade-off approach proposes that in order to strengthen national security, we are obliged to accept a corresponding decrease in human rights protection. If only we could get the balance right, our political difficulties might be resolved. There are two errors in this argument.

First, it presumes that these two public interests are distinct and in competition with one another. On the contrary, the protection of national security must necessarily include the defence of the fundamental values upon which Australian democracy is founded. A commitment to democracy, human rights and the rule of law is at the heart of those values. Similarly, a commitment to human rights plainly embraces the necessity to provide the safety in society upon which the effective exercise of human rights depends. The right to life, liberty and security is a fundamental inclusion in any and every human rights catalogue. The relationship between the two interests, therefore, is complex and mutually reinforcing.

Secondly, the real dilemma we face is not one that primarily concerns how national security and human rights should be brought into some kind of uneasy equilibrium. Instead the fundamental question to be addressed is what, in all the circumstances, does justice require? Or, to put the matter another way, is the threat of terrorism presently so great as to justify us acting unjustly? If we are to preserve the kind of society to which we aspire, the answer to that question must surely be ‘no’. 

Spencer Zifcak is Allan Myers Professor of Law and Director of Research at the Academy of Law, Australian Catholic University. He is immediate past president of Liberty Victoria. 

See following article by Susan Ryan on the campaign for a Human Rights Act in Australia.




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